Knickerbocker Plastic Co., Inc.

National Labor Relations Board - Board Decisions

Oct 2, 1951

96 N.L.R.B. 586 (N.L.R.B. 1951)

586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
KNICKERBOCKER PLASTIC CO., INC. and INTERNATIONAL ASSOCIATION OF
MACHINISTS , DISTRICT LODGE No. 727. Cases Nos. 21-CA-891 and
21-RC-1380. October 2, 1951
Decision and Order
On May 29, 1951, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceedings, finding that the
Respondent had engaged in certain unfair labor practices alleged in
the complaint, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto, and recommending, in addi-
tion, that the election held on September 6 and 7, 1950, among the
Respondent's employees, be set aside. The Trial Examiner also found
that the Respondent had not engaged in certain other alleged unfair
labor practices. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.-
The Board 2 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the ex-
ceptions and brief, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner,
with the following additions and modifications. -
1. The Trial Examiner found, and we agree, that the Respondent
violated Section 8 (a) (1) of the Act through a number of coercive
acts and statements, including promises of benefits to its employees
in an effort to cause defections from International Association of
Machinists, District Lodge No. 727, herein called the Union, interro-
gation of its employees and prospective employees concerning their
union activities and affiliations, declarations to its employees shortly
before a Board election that it would not bargain collectively with its
employees, permission to the Wage Earners Committee to use its time
and facilities for antiunion speeches and organizational activities
while denying the same privileges to the Union, and threats of re-
prisal against its employees for engaging in union activities.
To the extent, however, that the Trial Examiner may have found
that the Respondent engaged in actual surveillance of union meetings
or violated its employees' right to privacy in their union activities
by such espionage, we disagree. The record does not show that the
Respondent planted spies at union meetings or in the vicinity of union
meetings or otherwise engaged in surveillance.
1 The Respondent 's request for oral argument is hereby denied as we believe the record
including the brief , adequately presents the issues and the positions of the parties
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Members Houston, Reynolds , and Murdock].
96 NLRB No. 68.
KNICKERBOCKER PLASTIC CO., INC. 587
On the other hand, the evidence does clearly prove that White told
Goff about 2 weeks before the election that he knew of her activity at
a union meeting, who attended the meeting, what each one said, and
that he was always thus informed. These statements by White that
he was kept fully informed as to what happened at union meetings
and the identity of persons attending fostered an impression that
the Respondent did engage in surveillance and was, like surveillance,
intimidatory of the Respondent's employees. In the circumstances
we find that these statements interfered with, restrained, and coerced
the Respondent's employees in the exercise of the rights guaranteed
them in Section 7 of the Act, thereby violating Section 8 (a) (1) .3
2. We also agree with the Trial Examiner's finding that the Re-
spondent gave financial assistance and other support to Wage Earn-
ers Committee of the U. S. A., Inc.,4 a labor organization which had as
one of its express purposes, as stated to the Respondent's employees,
the handling of their grievances with the Respondent .5 The Respond-
ent not only provided Wage Earners with an opportunity to address
the employees during working hours, paying the employees for some
of this time, thus giving Wage Earners the opportunity to recruit
members for itself while severely attacking the Union, but the Re-
spondent's supervisory personnel actively solicited membership in
Wage Earners by passing out application blanks for the employees to
fill out after such addresses. While denying the Union any opportu-
nity even to address • its employees, the Respondent made financial
information available to Wage Earners to provide material for its
representative, La Fevre, to use in his speeches. In addition, the
Respondent gave Wage Earners a check for $100 to help pay the cost
of distributing Wage Earners' publication, "The National Wage
Earner," to the Respondent's employees, and offered to pay the dues
of employees who desired to join.6
19 W Evans & Sons, 81 NLRB 161. Cf. John S. Barnes Corp . V. N. L. R. B., 190 F. 2d
127 (C. A. 7).
4 As no exceptions were filed to the Trial Examiner 's failure to find that the Respondent
had also dominated Wage Earners , we express no opinion as to whether the acts complained
of were sufficient to support a finding that the Respondent dominated Wage Earners.
6 The Trial Examiner found, and we agree, that the Wage Earners is a labor organization
within the meaning of the Act, as it held itself out to handle grievances and solicited
membership on that basis . We do not believe it to be essential to such a conclusion to
determine whether or not the Respondent actually intended to deal with Wage Earners
over the grievances of its employees ; the organization ' s expressed purpose of settling
grievances is sufficient to meet the requirements of the definition of a "labor organization"
contained in Section 2 (5) of the Act.
O Employee Blanche Rounsavell , credited on this point by the Trial Examiner , testified
that at the first meeting at which La Fevre addressed the Respondent's employees , Presi-
dent White whispered something to La Fevre whereupon La Fevre turned to the employees
and stated that White would pay the dues to Wage Earners for all employees who could
not afford to pay for themselves. Rounsavell also testified that after the same meeting
Superintendent Hersey indicated that he would try to arrange for the payment of her
initiation fee to Wage Earners.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find, as did the Trial Examiner, that the Respond-
ent, by these acts, assisted and supported Wage Earners in violation
of Section 8 (a) (2) of the Act, thereby interfering with, restraining,
and coercing its employees in violation of Section 8 (a) (1) of the
Act.7
3. The Trial Examiner also properly found that the Respondent
had discriminatorily discharged two employees, Firmat and Freitas,
in violation of Section 8 (a) (3) and (1) of the Act.
It is clear that Firmat, one of a few employees who wore a union
button in the plant, was known by President White to be a member
of the Union. Firmat, a carpenter, had been employed steadily until
the time of his accident in late August 1950. Even during periods
when work was somewhat slack for him, he was employed full time.
At the time of his layoff in September, -however, work was not slack.
The Respondent had expanded its facilities and admittedly these
were in an unfinished state. . Firmat came to the plant to vote on the
first day of the election, September 6, 1950. At that time several men,
including Firmat's supervisor, Fioravanti, for whom Firmat had
performed work in the past, indicated that they had jobs for him and
fully expected him to return to work as soon as he was ready." Su-
perintendent Hersey, however, felt otherwise and showed his dis-
pleasure over Firmat's appearance at the polls, remarking to Firmat,
who had not been working since his accident, that he was "not too
sick to come to vote." The following morning, during the second
day of the voting, the Respondent took immediate action by telephon-
ing Firmat to inform him that his services were no longer needed.
That afternoon, after it was determined that the Union had been de-
feated by five votes, the Respondent disclosed why it had seized on an
opportunity to rid itself of a union adherent even after he had voted.
For, after announcing that he had "won against the Union" President
White informed his employees that he felt that the Union would "try
it again" and when it did he, White, intended to "fight the unions with
every drop of blood in [his] veins and every penny in [his] pockets."
From these facts we conclude that in laying off Firmat, who had openly
displayed his union affiliation by wearing his union button and so-
liciting membership, the Respondent was merely making its first move
to prevent the Union from winning any subsequent election, and to
demonstrate to its employees the potential hazards of union mem-
bership, thereby violating Section 8 (a) (3) and (1) of the Act.
The Respondent continued its discriminatory pattern in furtherance
of its declared purpose to defeat any future attempt by a union to gain
7 Cf. Salant & Salant, Inc., 92 NLRB 343; Meyer & Welch, 91 NLRB 1102.
' When asked his intentions , Firmat stated that he would return to work on the
following Monday.
KNICKERBOCKER PLASTIC CO., INC. 589
representative status among its employees with its treatment of em-
ployee Freitas, a union steward, who took 3 weeks' leave of absence
following the election. Although over a period of several months
he had received repeated assurances that it would be all right for him
to take the proposed leave and that his foreman, McLean, would
assume his duties while he was gone, after Freitas had acted as election
observer for the Union he was told that the "front office" would not
promise him his job back when he returned. When he did return as
scheduled, Freitas had not been replaced. Foreman McLean apparent-
ly was eager to put Freitas back at his job, but after keeping him wait-
ing a day, McLean finally notified him that he had tried to get Freitas'
job for him but that "the front office wouldn't accept [him]."
The Respondent's vigorous antiunion campaign consisting of many
activities violative of the Act, its failure to ratify its foreman's prior
approval of Freitas' leave, and its refusal to accept its foreman's re-
quest for permission to put the employee back on his job coupled with
the close margin by which the Respondent "won against the Union,"
President White's avowed intention of preventing the Union from
ever gaining a foothold in the plant, and the Respondent's failure
to assign any reason for its discharge of Freitas can reasonably lead
us only to the inescapable conclusion, as it did the Trial Examiner,
that the Respondent "wouldn't accept" Freitas because of his Union
affiliation and activities, thereby violating Section 8 (a) (3) and (1)
of the Act.
Order
Upon the entire record in these cases, and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, Knicker-
bocker Plastic Co., Inc., 'Glendale, California, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Assisting or supporting Wage Earners Committee of the U. S.
A., Inc., or any other labor organization of its employees. '
(b) Discouraging membership in the International Association of
Machinists, District Lodge No. 727, or in any other labor organization
of its employees, by discharging or refusing to reinstate, or in any
other manner discriminating against them, in regard to their hire or
tenure of employment or any term or condition of their employment.
(c) Interrogating employees, or in any other manner attempting to
elicit information from them, regarding attendance of employees at
union meeting, and activities thereat.
(d) Threatening its employees with reprisals unless they discontinue
their union activities.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Promising benefits to its employees for the purpose of inducing
the employees to vote against International Association of Machinists,
District Lodge No. 727, in any representation proceeding, or to re-
nounce their membership in, and activities on behalf of, that labor or-
ganization. -
(f) Interrogating its employees relative to their union affiliations,
activities, and sympathies of those of their coworkers.
(g) Announcing to its employees that it will bargain with them only
on an individual basis and not collectively with their duly designated
representative.
(h) Granting the use of its premises for organizational purposes to
one labor organization of its employees and denying the same privilege
to another.
(i) Requiring applicants for employment to furnish information
concerning their union affiliation.
(j) During an organizational campaign by a labor organization per-
mitting the use of its premises during working hours to persons
desiring to make antiunion speeches without according, upon reason-
able request, a similar opportunity to address the employees to the
labor organization against which such speeches are directed.
(k) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist International Association of Machinists, District Lodge
No. 727, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining, or other
mutual aid or protection, and to refrain from any and all such activi-
ties, except to the extent that such right may be affected by an agree-
ment 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 undersigned finds
will effectuate the policies of the Act :
(a) Withhold all recognition from Wage Earners Committee of the
U. S. A., Inc., as the representative of any of its employees for the pur-
pose of dealing with the Respondent concerning grievances, labor'dis-
putes, wages, rates of pay, hours of employment, or other conditions
of employment, unless and until said organization has been certified
by the National Labor Relations Board.
(b) Offer to Frank L. Firmat immediate and full reinstatement to
his former or substantially equivalent position and make him whole
for any loss of pay suffered as a result -of the Respondent' s discrim-
ination against him in the manner set forth in Section V of the Inter-
mediate Report entitled "The Remedy."
KNICKERBOCKER PLASTIC CO., INC. 591
(c) Make Joseph Freitas whole for any loss of pay suffered as a
result of the Respondent's discrimination against him in the manner
set forth in Section V of the Intermediate Report entitled, "The
Remedy."
(d) Delete from the application for employment forms the question
concerning the employee's union affiliations.
(e) Post at its plant in Glendale, California, copies of the notice at-
tached hereto and marked "Appendix A."9 Copies of said notice, to be
furnished by the Regional Director for the Twenty-first Region (Los
Angeles, California), shall, after being duly signed by the Respon-
dent's representative, be posted by the Respondent immediately upon
receipt thereof and maintained by it for sixty (60)- consecutive days
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that the said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the election held on September 6 and 7,
1950, among the employees of Knickerbocker Plastic Co., Inc., Glen-
dale, California, be, and it hereby is, set aside io
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the Respondent violated the Act by granting wage increases to
certain employees prior to the Board election of September 6 and 7,
1950, be, and it hereby is, dismissed.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE HEREBY WITHHOLD recognition Of WAGE EARNERS COMMIT-
TEE OF THE U. S. A., INC., as the representative of any of our
employees for the purpose of dealing with us concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, and we will not recognize it
or any successor thereto for any of the above purposes unless and
9In the event this Order is enforced by decree of a United States Courtof Appeals,
there shall be inserted before the words, "A Decision and Order" the words, "A Decree
of the United States Court of Appeals Enforcing."
no
When the Regional Director advises the Board that the circumstances permit a
free choice of representatives, we shall direct that a new election be held among the
Respondent's employees.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until the said organization is certified by the National Labor Rela-
tions Board.
WE WILL NOT assist or contribute financial or other support to
any labor organization of our employees.
WE WILL NOT promise benefits or make threats of reprisals in
order to influence our employees in their choice of bargaining
representatives, interrogate our employees relative to their union
affiliations and activities or the union affiliations and activities of
their fellow employees, ascertain the identity of our employees
who attend union meetings, inquire of prospective employees
their union affiliations, announce that we will bargain with
our employees on individual basis only and not bargain collectively
with the duly designated representative of our employees, grant
use of our premises for organizational purposes to one labor
organization of our employees and deny the same privilege to
other labor organizations, during an organizational campaign
by a labor organization among our employees grant the use of our
premises during working hours to persons desiring to make anti-
union speeches without according, upon reasonable request, a
similar opportunity to address our employees to the labor organi-
zation against which such speeches are directed, or in any other
manner interfere with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form labor organi-
zations, to join or assist INTERNATIONAL ASSOCIATION OF MACHIN-
ISTS, DISTRICT LODGE No. 727, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any and all of such activities except to the extent that such
right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the National Labor Relations Act.
WE WILL OFFER to FRANK FIRMAT immediate and full rein-
statement to his former or substantially equivalent position with- .
out prejudice to any seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of pay suf-
fered as a result of our discrimination against him.
WE WILL make JOSEPH FREITAS whole for any loss of pay suf-
fered as a result of our discrimination, against him.
All our employees.are free to become, remain, or refrain from be-
coming or remaining members of the above-named Union or any
other labor organization except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the
amended Act. We will not discriminate in regard to hire or tenure
KNICKERBOCKER PLASTIC CO., INC. 593
of employment or any term or condition of employment against any
employee because of membership or activity on behalf of any such
labor organization.
KNICKERBOCKER PLASTIC CO., INC.,
Employer.
By -------------------------------------
(Representative ) ( Title)
Dated ---------------------------------
-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 and Recommended Order
STATEMENT OF THE CASE
On June 23, 1950,1 International Association of Machinists, District Lodge No.
727, herein called the Union, filed with the Regional Director of the Twenty-first
Region (Los Angeles, California), of the National Labor Relations Board, herein
called the Board, a petition for certification of representatives to determine
whether the employees in a certain specified appropriate unit of the Knicker-
bocker Plastic Co., Inc., herein called the Respondent, desired to be represented
by the Union for the purposes of collective bargaining. Thereafter, the Re-
spondent and the Union entered into a consent-election agreement which was
approved by the said Regional Director on August 15.
On September 6 and 7, pursuant to the aforesaid agreement, a secret ballot
election was conducted among the said employees under the auspices of the
said Regional Director. At the election a majority of the votes was cast against
the Union?
On September 13, the Union filed objections to the conduct of the election
and to the conduct affecting the results thereof. On January 17, 1951, the Re-
gional Director issued his report on objections, in which he recommended that
the Board order and direct that a hearing be held to resolve certain issues raised
by the said objections. No exceptions were filed to the said report nor to the
recommendations contained therein. By order dated January 31, 1951, the
Board adopted the Regional Director's recommendations and directed that the
recommended hearing be held.
Upon a charge and amended charges duly filed. by the Union, the General
Counsel of the Board, herein called the General Counsel, issued a complaint on
January 17, 1951, and on March 19, 1951, issued an amendment to complaint,
alleging that the Respondent had engaged in, and was engaging in, unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1), (2), and
(3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act.
Copies of the complaint, amendment thereto, charge, amended charges, ob-
jections to the conduct of election and to the conduct affecting results of elec-
tion, the Regional Director's report on the objections, order of the Board direct-
ing a hearing on the aforesaid objections, together with notice of hearing there-
on, were duly served upon the Respondent, the Wage Earners Committee of the
4
' Unless otherwise noted all dates refer to 1950
2 Of the 170 votes cast , 81 were for the Union , 86 against, and 3 were challenged.
"There were 182 eligible voters.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U_ S. A., Inc., herein called Wage Earners, the organization alleged -in the com-
plaint to be existing in violation of the Act, and upon the Union.
On February 7, 1951, the aforesaid Regional Director issued an order, dated
that day, directing that the complaint and the representation cases, being Cases
Nos. 21-CA-891 and 21-RC-1380, be consolidated. Copies of the said order were
duly served upon the Respondent, Wage Earners, and the Union.
With respect to the unfair labor practices, the complaint, as amended, alleged
in substance.that the Respondent (1) since August 1, by means of certain stated
acts and conduct, interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act; (2) on or about Sep-
tember 7, discriminatorily discharged Frank Firmat and on or about October •2,
discriminatorily discharged Joseph Freitas, and thereafter refused to reinstate
either of them, because each of them had engaged in activities on behalf of the
Union; and (3) assisted, contributed support to, and otherwise aided Wage
Earners in violation of Section S (a) (2) of the Act.
On January 22, 1951, the Respondent duly filed an answer, and on or about
March 30, 1951, filed an answer to amendment to complaint wherein it denied
the commission of the alleged unfair labor practices.
Pursuant to notice, a hearing was held on various dates between April 2 and
20, 1951, before the undersigned, the duly designated Trial Examiner. The
General Counsel and the Respondent were represented by counsel and the Union
by officials thereof. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues was afforded all
parties. At the conclusion of the taking of the evidence, the General Counsel's
motion to conform the pleadings to the proof, with respect to minor variances,
was granted without objection. Respondent's counsel then moved to dismiss the
complaint for lack of proof.. Decision thereon was reserved. The motion is
hereby denied. The parties were then advised that they might file briefs or pro-
posed findings of fact and conclusions of law, or both, with the undersigned on
or before May 7, 19519 Briefs have been received from the General Counsel "and
from counsel for the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Knickerbocker Plastic Co., Inc., a California corporation, has its offices and
principal place of business in Glendale, California, where it is engaged in the
manufacture, sale, and distribution of plastic toys. During 1950, the Respond-
ent purchased materials, equipment, and supplies valued in excess of $500,000.
These purchases were shipped to its plant from points located outside the State
of California. During the same period, the Respondent produced and sold prod-
ucts valued in excess of $1,000,000 which products were shipped to points located
outside the State of California.
The Respondent concedes, and the undersigned finds, that it is engaged in
commerce within the meaning of the Act.
a Upon request of counsel, the time was extended to and including May 21, 1951.
KNICKERBOCKER PLASTIC CO., INC. 595
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists, District Lodge No. 727, and Wage
Earners Committee of the U. S. A., Inc., are labor organizations admitting to.
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion ; the disputed election
1. The pertinent facts
In the latter part of May or early in June, the Union commenced an organi-
zational campaign among the Respondent 's employees which culminated with
the Union filing a petition for certification with the aforesaid Regional Director
of the Board on June 23 . Thereafter , the Respondent and the Union entered
into a consent-election agreement which was duly approved by the said Regional
Director.
As part of its campaign to defeat the Union at the polls , the Respondent as-
sembled the employees , during working hours and without loss of pay, on or
about August 8. Leo White , Respondent 's president , opened the meeting by
stating that he had asked Robert T. Le Fevre of Wage Earners to address the
employees because he believed that "Le Fevre might be able to straighten out
some of the dissension in the plant" ; that he had joined the Wage Earners and
was "backing" it 100 percent ; and that he would like all the employees to join.
Le Fevre ' s speech, which immediately followed White's introductory remarks,
was a tirade against unions in general and against union leaders in particular.
Le Fevre stated, among other things, that most union leaders were Communists ;
that unions collected $80,000,000 in dues, monthly , which was tax free ; that
union leaders considered union members nothing but "weed heads " ; that Mus-
solini, Hitler , and Stalin rose to power through their offices as labor leaders ;
and that the employees would be obliged to pay $25 initiation fee in order to
join the Union and their monthly dues would be $3 , whereas membership in
Wage Earners cost but $1 per year.4 Le Fevre then proceeded to solicit member-
ships for Wage Earners stating that White informed him that White would pay
the first year 's dues for each employee joining.
As the employees filed out of the meeting, Superintendent Walter 0. Hersey
and several other supervisors handed them Wage Earners ' membership applica-
tion blanks and the then current issue of that organization 's magazine.
A day or two after the aforesaid meeting, at the request of Martha Clitheroe,
a union steward, White met with Clitheroe and four other female employees in
his private office. At the opening of the meeting , the employees informed White
that they were perturbed at, and resented , Le Fevre's remarks about Communism,
that most labor leaders were Communists , and that since the advent of the Union
in the plant the employees "were all going around with long faces and with kind
of guilty consciences ." White, after a lengthy discourse about his personal life,
stated that the employees should join Wage Earners rather than "join up with
a bunch of communists ." Goff then told White that one of the "pet gripes" of
the employees was the Respondent's policy of not granting "holiday pay." White
replied that the employees received holiday pay in the form of year -end bonuses.
In response to the employees' request for a general wage increase , White stated
that the Respondent 's then business condition did not warrant the granting of
a general wage increase , but, he added , he planned to give the employees with
4 The Union announced in a handbill , according to Employee Mary Ann Goff ' s credited
testimony , that the initial cost to join the Union was $3 whch included the first month's
dues.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the greatest seniority larger year -end bonuses provided business conditions im-
proved.` White also stated that he was going to make certain working condition
improvements . Before the meeting concluded , White called in his assistant,
'Bernard E. Harrison , and had Harrison outline to , and discuss with, those
present the insurance plan which the Respondent was about to put into effect.
About a week after the aforesaid meeting, White and the same five employees
again met. This time, the employees brought up the question of the unsatis-
factory wage scale being paid to employee Worcester. In order to ascertain the
facts, White called into the meeting the Respondent 's bookkeeper and Harrison.
During the discussion which ensued about Worcester , both the bookkeeper and
Harrison stated that Superintendent Hersey had instructed them , sometime
previously, to change the policy of automatically increasing the wages of new
employees every 3 months, until a certain level was reached, to every 4 months
and that Worcester was being kept at her salary level because she was an
unsatisfactory worker. White then instructed Harrison and the bookkeeper to
revert to the old policy of automatic wage increases. Before the meeting con-
cluded Harrison and White again discussed in the presence of the five employees,
the progress which was being made with respect to the insurance plan.
On or about August 23 all the employees were assembled on company time and
without loss of pay and again were addressed by Le Fevre.' As Le Fevre was
about to speak, the employees showed their resentment toward him by booing
and groaning. Le Fevre, however, was not disturbed by the unflattering reception
and proceeded to outline the advantages of Wage Earners, the disadvantages of
belonging to any union, and again solicited membership for his organization.
Thereupon, Le Fevre asked if the employees had any questions to ask him. One
employee asked, "If we should join the Wage Earners what can you do towards
settling a grievance for us and what can you do about it?" Le Fevre replied,
according to Goff's credible and undenied testimony, "Well, if you let me know
about it I will burn up the wires taking care of it." The same employee then
asked, "How long will it take," to which Le Fevre replied, "about fifteen
minutes."' Before the meeting concluded , Le Fevre discussed and analyzed the
5 The record indicates that in the past the Respondent gave identical year -end bonuses to
all its employees.
As on the previous occasion , White, Hersey, and the other managerial staff were present.
- 'r Hersey testified that after the above colloquy he took the microphone away from Le
Fevre and announced that Le Fevre was not authorized to state that the Respondent would
discuss employees ' grievances with Le Fevre, adding , to quote Hersey , "I personally [will]
listen to anybody for suggestions , criticisms , or grievances , myself , individually, but I
[will] not deal with them collectively ." In support of Hersey 's testimony , Foreman Fiora-
vanti testified that after Le Fevre had stated "something about grievances , that he would
take them up," Hersey announced that he, Hersey, would take care of them. Goff testified
that at neither Le Fevre meeting did Hersey state that he would "deal with the employees
individually , but not in a group." She further testified that the only remarks Hersey made
at the second Le Fevre meeting ( admittedly , Hersey did not speak at the first meeting)
were made after Le Fevre had stated , "due to so much dissension in the plant over the
union one of the girls had gotten her finger caught in a machine," Hersey grabbed the
microphone away from Le Fevre and said , "That isn't so. The girl did get her finger caught
in the machine , but it was due to the fact that she was going to adopt a baby." Goff was
a forthright and credible witness and her demeanor while on the witness stand favorably
impressed the undersigned . On the other hand, Hersey and Fioravanti were not credible
witnesses The testimony of each of them evidences a complete lack of candor on their
part and clearly shows that they attempted to withhold the true facts . Hersey's testimony,
furthermore, is replete with "I do not know," "I do not recollect," and "I do not remember,"
in response to questions propounded to him by the General Counsel although the facts relat-
ing to the questions were obviously within his personal knowledge . Moreover , Harrison
testified in minute detail about each Le Fevre meeting but he did not mention that Hersey
announced that he would not deal with Le Fevre concerning employees ' grievances. Under
the circumstances , the undersigned finds Goff's version of what Hersey said at the
second Le Fevre meeting to be substantially in accord with the facts.
KNICKERBOCKER PLASTIC CO., INC. 597
financial condition of the Respondent wherein he pointed out its unsatisfactory
condition.
On August 25 D. A. Gordon, an organizer for the Union, telephoned White
and requested permission to address the employees in order to refute Le Fevre's
remarks. White stated before he would grant the request he would seek legal
advice and would inform Gordon of his decision within the hour. Not hearing
from White by the end of the day, Gordon sent him a registered letter embody-
ing therein the aforesaid request. No reply was made to the letter.
On or about August 31, according to the credible testimony of Goff, -Hersey
assembled the employees during working hours and without loss of pay, and,
in the presence of White and the entire managerial staff , denounced labor
unions, stated that they were communistic, dominated by Communists, and
"stink." Goff further credibly testified that Hersey also said that the Respond-
ent "had a lot of things in mind for" the employees but "his hands were tied
right now and he couldn't say a thing" ; that he would deal only with the em-
ployees individually and not collectively ; and that while he was addressing the
employees, he held some papers in his hands, including handbills distributed by
the Union, and said, "I have affidavits here that could fire a lot of you people,
but you are still here, aren 't you?"
Employee Blanche Rounsavelle credibly testified that Hersey also stated at the
aforesaid meeting that the Respondent was about to put into effect an in-
surance plan ; that Hersey then called upon Harrison to explain the plan to
the employees ; and that Harrison did as requested.
Rounsavelle also testified without contradiction, and the undersigned finds,
that in the latter part of August or early in September one of the female em-
ployees became ill at work; that Hersey then called into his private office groups
of employees ; that Hersey said to her group that the employees "were persecut-
ing" the ill employee in an effort to get her to join the Union and he wanted to
know who it was ; that when no one answered Hersey said, "I am going to get to
the bottom of this. If I don't find the right one I am going to fire all three tables
,of you"; that Hersey also said, "I [do not] expect you to tell the truth because
you are all a bunch of - - liars anyway" ; that he concluded the interview
by stating, "You girls are not going to get a raise and if you don't like it you
can get the hell out of here."
Clitheroe testified credibly that about a week before the Board election White
requested her to come to his private office ; that White thereat told her that he
had been informed that she had not been feeling well due to "union talk and
going to the meetings" ; and that White then advised her she should not "stick
[your] neck out for the other girls" but to look after her health.
Goff testified, and the undersigned finds, that during a conversation she had
with White about 2 weeks before the election, White, after informing her that
he knew that she had asked a certain question at a meeting of the Union, told her,
"I know everything that goes on at those union meetings. Someone always calls
me at home and tells me who is there and who says what." 8
Employee Stanley W. Herr testified ' without contradiction, and the under-
signed credits his testimony, that he attended the party given the employees by
the Respondent on the eve of the Board election:8 that during the course of the
,evening, Fioravanti asked him who and how many employees had attended the
8 white admitted that he told an employee , whose name he could not recall , that he
knew "what is going on " at the Union ' s meetings
Contrary to the General Counsel 's contention , the undersigned finds that there is no
substantial evidence in the record to support a finding that the party was given to induce
the employees to vote against the Union at the election.
974176-52-vol. 96-39
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting of the Union held that day ; that Fioravanti specifically asked him
whether employee Vaughan Davis had attended the meeting ; and that he gave
Fioravanti no direct answer to either inquiry.
On September 7, after the results of the election had been announced, White
assembled the employees, both supervisory and nonsupervisory, and addressed
them. Regarding what ensued at this meeting, Goff testified credibly and with-
out contradiction as follows :
Mr. White got up and said he was proud to announce that he had won
against the Union. He said, "They tried it before and they will try it
again, but I intend to fight the unions with every drop of blood in my veins
and every penny in my pockets."
Then he said that he was giving everyone a blanket raise including the office
help. He said that he had things in mind then, bigger bonuses and more
vacations and things along that line, but it was not a promise. He couldn't
tell yet just how things were going to turn out. Then he called Mr. Har-
rison up to tell us about our insurance plan.
2. Concluding findings
The facts in this record, summarized above, amply establish that the Re-
spondent by (1) White's'declaration to Goff that he was being kept informed
as to the identity of the employees attending union meetings and what was
transpiring thereat, thereby invading upon the employees' rights to privacy as
to their union affiliations and activities;" (2) White's veiled threat of reprisal
to Clitheroe when he advised her "not to stick [her] neck out" for the other
employees;" (3) the disclosure of the insurance plan at a meeting of the em-
ployees called by the Respondent about a month before the election at which
representatives of the Respondent denounced unions and their leaders and
advocated support of the Respondent's own labor organization;12 (4) White's
promise of improved working conditions made at a meeting with a group of em-
ployees at which he denounced unions and solicited memberships for Wage
Earners;13 (5) Hersey's questioning of Rounsavelle and other employees in an
attempt to ascertain the identity of the employee or employees soliciting mem-
berships for the Union and his threat of discharge if the employees questioned
did not divulge the requested information ;14 (6) Hersey's announcement to the
10 See N. L. It. B. V. Fruehauf Trailer Co ., 301 U. S 49; N. L. R. B. V. Link Belt Co., 311
U. S. 584;,Y. L. R. B. v. Donnelly Garment Co, 331 U. S 219; Heinz Co. v. N L It. B.,
311 U. S. 514; N L. R. B. v. Northwestern Mutual Fire Ass'n., 142 F. 2d 866.
'IN. L R. B. v. Acme Air Appliances Company, Inc, 417 F. 2d 117 (C A. 2) ; N. L. R. B.
v. Sandy Hill Iron & Brass Works, 165 F. 2d 660 (C. A. 2).
12 N. L. R. B. v. Wytheville Knitting Mills, Inc., 175 F. 2d 238 (C. A. 3) ; N. L. R B. v.
Jahn & Ollier Engraving Co., 123 F. 2d (C. A. 7) ; N. L. R. B. v. Chicago Apparatus Co,
116 F. 2d 753 (C. A. 7) ; N. L. It. B. v. Crown Can Co., 138 F. 2d 268 (C. A. 8). The fact
that the Respondent had the insurance plan under consideration for about 8 months prior
to the announcement is irrelevant The fact remains that the plan was announced about
a month preceding the election. The time chosen by the Respondent to advertise its bounty
could only have been intended by the Respondent to prevent, as the Court said in N. L. R. B.
v. Christian Board of Publication, 113 F 678, 681, the "attempts of [the] outside labor
,organization to appeal to its employees . . . . 11 See also Gate City Cotton Mills, 70•
NLRB 238, affd. 167 F. 2d 647 (C. A. 5) ; Minnesota Mining & Manufacturing Company,
81 NLRB 557, affd. 179 F. 2d 323 (C. A. 8).
13 Western Cartridge Company v. N. L. R. B., 134 F. 2d 240 (C. A. 7) ; May Department
Stores, etc . v. N. L. R. B., 326 U. S. 376, 385; Joy Silk Mills v. N. L. if. B., 185 F. 2d 732
(C. A. D. C.).
21 See N. L. R. B. v. Link Belt Co ., supra; Minnesota Mining & Manufacturing Co., supra.
KNICKERBOCKER PLASTIC CO., INC. 599
employees at a meeting called by the Respondent within 10 days of the election
at which he stated that he would not bargain collectively ;15 (7) Fioravanti's in-
terrogation of Herr regarding the identity of the persons attending the Union's
meeting of September 5;18 and ( 8) permitting Le Fevre to address the em-
ployees on company time and property in degradation of the unions and of their
leaders while denying the Union permission to speak in its behalf under like
circumstances," the Respondent interfered with, restrained, and coerced its
employees in the exercise of their rights under Section 7 of the Act, thereby violat-
ing Section 8 (a) (1) thereof.
In his brief, counsel for the Respondent argued that the statements of White
and Hersey are privileged under the provision of Section 8 (c) of the Act, which
protects employers in their expression of "views, arguments, or opinions" if such
expression "contains no threat of reprisal or force or promise of benefit." It is
plain that there is no conflict here between the proscription of White's and Her-
sey's statements,-as epitomized in the immediately preceding paragraph, and
the immunity given to the expression of "views, arguments, or opinions" under
Section 8 (c). The statements of White and Hersey were not expressions of
"views, arguments, or opinions" but were palpably coercive in character.18 As
the Fifth. Circuit ruled, "Employers still may not, under the guise of merely
exercising their right of free speech, pursue a course of conduct designed to re-
strain and coerce their employees in the exercise of rights guaranteed them in the
Act. Antiunion conduct of this nature remains violative of the new enactment." 19
Upon the basis of the above findings, and upon the entire record in the case,
the undersigned further finds that the Respondent interfered with the election
held on September 6 and 7, 1950, thereby depriving the employees of the freedom.
of choice of representatives contemplated by the Act. Accordingly, the under-
signed recommends that the said election be set aside and vacated.
Admittedly, for about 5 years prior to October 10, 1950, there appeared upon
the Respondent's application-for-employment form, the question "union affilia-
tion" and that after October 10, 1950, new forms have been used by the Re-
spondent which do not contain the aforesaid question. The Respondent con-
tended at the hearing that (1) since the evidence shows that the applicants were
not required to state their union affiliation when filling out the form and (2)
since the evidence also shows that applicants who inserted their union affilia-
tions 'were hired, no finding should be made that the Respondent violated the
Act because of the appearance of the said question on the application form. The
undersigned finds no merit to the contentions. The application forms, which the
11 This announcement , tinned as it was, was intended to impress upon the employees that
there was no necessity for their selecting a bargaining agent at the forthcoming election
for, in no event , would the Respondent bargain with the Union even if the Union was
successful at the polls . Thus , the Respondent intentionally interfered with the employees'
rights of self-organization and with their rights to select a representative of their own
choosing Augusta Bedding Co., 93 NLRB 211.
1e Minnesota Mining & Manufacturing Co., supra.
li See N L R. B v. Waterman Steamship Co., 309 U S. 206 ; Consolidated Edison Co. v
N. L. it. B., 305 U. S. 197 ; Carter Carburetor Co v. N L R. B , 140 F 2d 714 (C A. 8) ;
The Loudonville Milling Company , 79 NLRB 304, 322; cf. N. L. R B. v. Clark Bros. Co.,
163 F. 2d 373 (C. A 2).
Is This case plainly does not involve mere "perfunctory, innocuous remarks and queries,
standing alone" such as those involved in Sax v. N. L R B, 171 F. 2d 769 (C A. 7) relied
on by Respondent' s counsel in his brief . Likewise, the facts in the other cases cited by
counsel in support of his contention that White's and Hersey 's statements are protected
by Section 8 (c) are dissimilar to those here and hence the cited cases do not apply.
'IN. L R B. v. Gate City Cotton Mills , 167 F 2d 647, 649. See also N. L R. B v The
Electric City Dyeing Company, 178 F. 2d 980 (C. A. 3).
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent maintained as records in the regular course of its business, contained
a question concerning the applicants' union affiliations, a matter which should be
of no concern to the employer.
The Board and the courts have consistently and uniformly held that the use
of such forms, requiring a disclosure of union affiliations, is a form of interroga-
tion which is no less violative of the Act than oral interrogation concerning union
affiliation or activities.YO
The fact that the record does not show that applicants were actually refused
employment or that their rights under the Act were otherwise violated, is im-
material. The mere use of such forms, irrespective of the use made of the infor-
mation obtained, is a violation of the Act.
The undersigned therefore finds that by the use of the application-for-employ-
ment forms upon which appeared the question converning the applications' union
affiliations, the Respondent has interfered with, restrained, and coerced appli-
cants for employment in the exercise of the rights guaranteed in Section 7 of the
Act, thereby violating Section 8 (a) (3) thereof.21
The further contention that no finding of unfair labor practices should be made
with respect to the application blank because the objectionable feature of the
form has been eliminated, is likewise without merit.
The Respondent's discontinuance of the illegal conduct is not sufficient ground
for dismissing the complaint with respect to the application form 22 The under-
signed, moreover, is convinced that the effect of the use of the illegal forms still
remains to be dissipated.
Contrary to the General Counsel's contention, the undersigned finds that the
evidence is insufficient to support the allegations of the complaint that the
wage increases given to certain employees prior to the Board election were
given by the Respondent for the purpose of inducing the said employees to vote
against the Union. The record does not establish that the granting of the wage
increases was designed to interfere with the self-organizational rights of the
employees.23 Nor does the record show that the wage increases were an-
nounced at a time and in a manner calculated to influence the vote of the em-
ployees and to destroy the appeal of the Union.24 For aught this record shows
the granted increases might have been the regular increases automatically
given each 3 or 4 months to the employees whose wages had not reached the es-
tablished wage scale.
Under the circumstances, the undersigned will recommend that the allegations
of the complaint that the Respondent violated the Act by granting certain em-
ployees wage increases to influence their votes at the election, be dismissed.
B. The discharges
The complaint, as amended, alleged that the Respondent, in violation of the
Act, discharged Frank Firmat on or about September 7, and discharged Joseph
Freitas on or about October 2, and thereafter refused them reinstatement be-
cause each of them had engaged in activities on behalf of the Union. In its an-
swer the Respondent denied the aforesaid allegations.
20 Texarkana Bus Corp. v. N. L. R. B., 119 F. 2d 480 (C A. 8) ; Dannen Grain and
Milling Co. v. N L. R. B., 130 F. 2d 321 (C. A. 8).
21 See Peter Freund, et at, 61 NLRB 119 and cases cited in footnote 9 thereof.
22 See Pacific Moulded Products Company, 76 NLRB 1140; N L. R. B. v. The Burke
Machine Tool Company, 133 F. 2d 618 (C. A. 6) ; The Howland Dry Goods Company, 85
NLRB 1037; Cory Corporation, 84 NLRB 972.,
23 See Artcraft Hosiery Co., 78 NLRB 333; Loudonville Milling Co, supra; Gray Drug
Stores, Inc., 79 NLRB 1140.
24 Cf. Minnesota Mining and Manufacturing Co., supra.
KNICKERBOCKER PLASTIC CO., INC . 601
t
Frank Firmat was first employed by the Respondent on or about April
11, 1950, as a carpenter and during his employment his duties consisted of
building and repairing tables, racks, closets, doors, frames, and the like. Fir-
mat worked under the supervision of Fioravanti but also performed work at the
request of other foremen.
Commencing immediately prior to August 8,Z` Firmat conspicuously wore his
union button while at work for a period of about a week. The credible evidence
establishes that White observed Firmat wearing the button. Besides being one
of the very few who openly displayed the union button in the plant, Firmat solic-
ited membership for the Union.
Later in the day on which Firmat had the conversation with Barber, referred
to below, Fioravanti came to him and, according to Firmat's credible testimony,
said, "I am sorry, Frank. Mr. Hershey called me and he has to let you go"; that
he said, "Have you already talked about the raise" to which Fioravanti replied,
"No, I haven't had a chance to catch Hershey to ask him for your raise" ; that
he then stated, "Well, it is a good thing that you didn't stick your neck out" ;
and that the following then ensued :
Then about a half hour or so later Mr. Hershey came by and he says, "I am
sorry, but we have to let you go." . . . "There is not enough work."
I says, "What is the matter, Mr. Hershey? Is it on account of any beefs
from the foremen?"
He says, "No, on the contrary. Tony (Fioravanti) likes you, Fred Smith
(a foreman) likes you and everybody is happy with your work."
So he says, "I know. It is on account of the union."
He says, "No, that has nothing to do with it."
I says, "0. K.," and he left.
Then, I was putting some suggestion boxes in the door and I was right
next to his office.
Trial Examiner MYERS. Whose office?
The WITNESS. Mr Hershey's office. I was cutting a slot in the door and
he came by and he says, "Well, since you ordered that material for the room
for this guy that is coming in, you can stay until that is finished."
So I says, "All right."
Firmat further testified credibly that several days after the above referred to
conversations with Fioravanti and Hersey, he informed Fioravanti that he had
informed Gordon, a union organizer, about his contemplated layoff and that
Gordon had secured a job elsewhere for him ; that Floravanti offered to speak
to Hersey and inform Hersey that he had an opportunity for other employ-
ment and to obtain Hersey's comments on the matter ; that he replied that he,
himself, would discuss the matter with Hersey ; and that he saw Hersey and
had the following conversation :
sa On or about August 8 Firmat had a conversation with Herbert Barber who the Gen-
eral Counsel contended was a supervisor within the meaning of the Act. The Respondent
contended otherwise Over the objection of Respondent 's counsel the undersigned per-
mitted Firmat to testify about a conversation he had with Barber which took place on or
about August 8, but with the expressed understanding that if Barber's supervisory status
was not affirmatively established, the undersigned would not consider the conversation
as having any probative value and would make no finding with respect thereto. Since
the General Counsel has failed to prove that Barber was a supervisor within the meaning
of the Act, the undersigned has given no consideration, to the said conversation except
to note that it took place on or about August 8, 1950. For the same reason, the under-
signed has not considered as having any probative value certain other conversations
between Barber and Firmat about which the latter testified.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I says, "Mr. Hersey , I would like.to find out what my status is here,
whether I am going to be fired after this job or what?"
- He says, "You misunderstood me. What I meant to say was that when
you weren't busy, why, you were -free to take work on the outside."
I says, "That doesn't satisfy me, Mr . Hersey."
He says, "Well, go ahead with your job and we will go on like we
were . . ." 2B
Firmat continued to work until he was injured in an automobile accident on or
about August 26.
On September 6 Firmat returned to the plant to vote at the Board election.
Regarding the events that ensued after he had cast his ballot, Firmat testified
that Fioravanti inquired when he intended to return to work to which he replied
that he would probably return the following Monday, September 11; that Fiora-
vanti then said, "That's fine, I need some new tables made" ; that the foreman of
the machine shop then inquired of him, "When are you going to fix [the machine
shop] ceiling and windows" and he replied, "Next Monday" ; that others inquired
when he would perform certain work for them, to all of which inquiries he made
acceptable responses ; that White made sympathetic remarks because he had
been injured ; and that Hersey made a statement to the effect, "You are not too
sick to come to vote."
Hersey did not specifically deny making the remark to Firmat on September
6, attributed to him by the latter. Hersey admitted, however, that he did make
some statement to Firmat on September 6, the nature of which he did not explain.
Fioravanti testified that on September 6 he told Firmat, "I might have a table or
two" for him to make The machine shop foreman and the others who inquired
.of Firmat when he would be ready to perform work for them did not testify.
Upon the entire record in the case, the undersigned is convinced, and finds, that
"Firmat's versions of what ensued and what was said to him on September 6 by
Hersey, Fioravanti, and the other persons mentioned by him in his testimony
to be substantially in accord with the facts.
Firmat further testified that the following day, September 7, Fioravanti tele-
phoned him and said, " I am sorry , Frank, but Mr. Hersey has informed me that
your services are not needed" ; 21 that after a few further remarks by him and
Fioravanti he informed the latter that he would pick up his tools on Saturday,
September 9; and that on that date he picked up his tools
Regarding the above telephone conversation, Fioravanti at first testified that
it took place about 3 weeks or a month after the election. Fioravanti's version
of what was said during the course of the conversation is:
I talked to him (Firmat) and told him if he wanted to come back to work
at that time, he could. I told him that we have work for him for three or
four days a week and that maybe something might develop so that he would
have full time work. He said that he would not come back under those
conditions He said that he had something else lined up and that he didn't
think he would come back to Knickerbocker.
2' Regarding this conversation , Hersey said that when he informed Firmat that "'our
work was running low" and that as soon as the jobs he was then doing had been completed
he should look for other employment and that Firmat replied, "Well , that's all right. If
you have no work, I will go back to the studios " The undersigned does not credit Hersey's
0ersion of the conversation because Hersey, as the recoid amply reveals, was not a credible
witness.
Firmat testified that he was not sure whether Fioravanti said in the above telephone
conversation , "Your services are not needed" or whether he said , "There isn ' t enough work."
In any event , Firmat construed the words to mean that he was laid off
KNICKERBOCKER PLASTIC CO., INC. 603
Upon being shown the affidavit he gave to a field examiner of the Board, sworn
to October 10, 1950, Fioravanti admitted the telephone conversation took place,
within a week of the election ," and that therein he informed Firmat that the
latter was laid off for lack of work.
As found above Firmat was a credible witness. Fioravanti was not. The
undersigned therefore finds Firmat's version of the aforesaid telephone
conversation to be substantially correct.
Hersey denied that he had instructed Fioravanti to discharge Firmat. He
testified that over a period of about a month or 6 weeks after the election, he
"occasionally" asked Fioravanti if Firmat intended to return to the plant and
that each time Fioravanti replied that Firmat was not returning because of an
injured back and that Fioravanti always added that Firmat was seeking employ-
ment elsewhere . Hersey's testimony , related above , is patently false and the
undersigned so finds.
The undersigned finds that on September 7 Fioravanti discharged Firmat and
on that date notified Firmat of the discharge. The undersigned further finds that
Firmat was discharged upon Hersey's instructions.
Under date of October 23, Hersey sent Firmat a registered letter reading in
part as follows :
I had asked Anthony to call you to find out if you were available for short
jobs that might run one-half to two or three hours periodically. Anthony
advised me that he had talked to you, and you stated that you were unable
to work and haven't worked since the accident, that a back injury had devel-
oped from the accident, and also that you didn't care to come back at
Knickerbocker Plastic Co.
If this statement was made by you to Anthony, and if I do not hear further
from you, I will consider that you do not wish to come back at Knickerbocker
Plastic Co., to work for short periodic jobs.
Firmat did not reply nor did he take any action with respect to the above
letter.
Upon the entire record in the case, the undersigned finds that Firmat was
discharged on September 7, and thereafter refused reinstatement 29 because he
was a member of and active on behalf of the Union. By such discharge, the
Respondent discouraged membership in a labor organization in violation of
Section 8 (a) (3) of the Act, thereby interfering with, restraining, and coerc-
ing its employees in the exercise of the rights guaranteed in Section 7 thereof.
21 The affidavit states that the telephone conversation occurred a day or two atter the
election.
29 The contention of the Respondent that by its letter of October 23, Firmat was offered
unconditional reinstatement to his former or substantially equivalent position and that
Firmat refused his offer, is without merit . At most the letter offered Firmat temporary
or part-time work only . The credible evidence is clear, and the undersigned finds, that
throughout Firmat's entire employment with the Respondent he was a full-time employee
working at least 40 hours each week as did all the Respondent ' s employees . The credible
evidence further shows that at no time did the Respondent have in its plant a part-time
carpenter . The claim that on and after September 7 there was little or no carpentry
work for Firmat to perform is evidenced only by the unreliable and unconvincing testimony
of Hersey and Fioravanti , two discredited witnesses The claim is not supported by any
documentary or other reliable evidence which was easily available to the Respondent if such
evidence existed. The Respondent produced no such evidence . The undersigned therefore
finds that the claim of decreased carpentry work on and after September 7 is false.
Furthermore , the undersigned finds that the said letter of October 23 which was sent
after the Union had filed with the Board the first amended charge wherein it alleged that,
Firmat was discriminately discharged, to be not only a self-serving letter, but further
evidence of Hersey 's lack of good faith.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joseph Freitas started his employment with the Respondent in May 1950
and worked continuously in the shipping and receiving department until Septem-
her 8 of that year.
In July Freitas was elected a Union steward and he was an observer for the
Union at the Board election.
According to Freitas' undenied and credible testimony, in the latter part of
June, he received a letter from his sister, who resides in Taunton, Massachusetts,
that she was going to be married- and, requested that he attend her wedding;
that he showed the letter to his foreman, George McLean, stating that he would
like to take 3 weeks off in September to attend the wedding ; that McLean said,
"Joe, leave it all up to me. I will take care of it"; that in July he again spoke
to McLean about taking time off in September to attend the wedding and McLean
stated, "0. K. Leave it all up to me"; that sometime during the first week in
September he told McLean that he would like to leave on September 8 to attend
the wedding, and McLean replied, "Leave it all up to me"; that on September
8 he told McLean that he was leaving that day to attend the wedding, and
McLean said, "0. K. I will get you your check" ; and when McLean
returned with the check, McLean said, "The front office won't promise you
your job, but come back and see me personally when your three weeks are
up'; that when he returned to the plant on October 2, at his usual starting hour,
he inquired of McLean why his time card was not in the rack and McLean said,
"Wait around and we will see Mr. Hersey when he comes in"; that at about
9 o'clock that morning, after McLean had seen Hersey, McLean said to him,
"Well, Joe, I will let you know during the day. I will have to talk to Mr. Hersey
a little more about it"; that at about 5 o'clock the same afternoon McLean
telephoned him at his home and said, "I am very sorry, Joe. I tried to get
your job for you, but the front office wouldn't accept you."
Freitas further testified credibly and without contradiction that on the day
he left the plant, September 8, to attend the wedding, and also prior thereto,
McLean assured him that his job would be available upon his return even if
it were necessary for McLean to perform some of his manual work; that prior
to September 8, there were four persons" working in his department ; and that
upon his return McDaniel and two new employees only were working there.'
Under date of March 20, 1951, Hersey sent Freitas a registered letter reading
in part as follows :
At this time we now have an opening for employment in our shipping
department, for a shipping clerk, and it is my pleasure to offer you this
opportunity.
May I ask that you kindly let me know if you so wish to accept this offer,
and I will appreciate your coming into the office to see me, at your earliest
possible convenience.
Several days after the receipt of the letter, Freitas informed Hersey by tele-
phone that he did not desire reinstatement because he was employed elsewhere.
Neither the quality nor the quantity of Freitas' work was put in issue. The
Respondent, moreover, made no claim that Freitas was an undesirable employee.
3° Namely, Freitas, McDaniel, Goodrich, and Kennady.
ai Freitas' testimony with respect to the number of shipping department employees on
September 8 and on October 2 seems to be somewhat contradictory and confusing but he
did testify flatly that upon his return to the plant on October 2 he found McDaniel and two
new men, whose names he did not know, working there, whereas on September 8 there were,
four. In any event the Respondent offered no evidence to show that Freitas had been
replaced prior to October 2 or at any other time.
KNICKERBOCKER PLASTIC CO., INC. 605
In fact, the contrary seems to be the fact, for in his letter of March 20, 1951,
Hersey stated "it is my pleasure to offer you" reemployment.
Freitas was never informed , nor was any explanation given at the nearing,
why Freitas ' employment was terminated.
As found above, Freitas was elected union steward by his coworkers in July,
and was selected observer for the Union at the Board election. If Freitas'
membership and position in the Union did not come to the Respondent's atten-
tion prior to the election, his activities in its behalf did so during the course
thereof, and prior to his leaving to attend the wedding.
The evidence with respect to Freitas' termination, as summarized above, viewed
against the Respondent's vehement antiunion background, as found above, sup-
ports a conclusion that Freitas was discharged upon his return to the plant, on
October 2, because of his membership and activities in behalf of the Union. This
conclusion becomes inescapable when it is considered that the Respondent offered
no explanation for its actions .u By such discharge the Respondent discouraged
membership in a labor organization in violation of Section 8 (a) (3) of the Act,
thereby interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 thereof.
C. Assistance and support of Wage Earners
That the Respondent intended to establish and set up Wage Earners as an
instrumentality to offset legitimate collective bargaining and thus to thwart one
of the primary purposes of the Act, is incontrovertibly established by the cred-
ible evidence. The Respondent not only gave Wage Earners financial support,
urged the employees to join it and renounce their affiliation with the Union, but
permitted Le Fevre to talk to the employees in behalf of, and to solicit their
membership for, his organization on company time and property while denying the
Union the same privileges.
The record, furthermore, clearly establishes that Wage Earners was to handle
grievances, a function uniquely typical of labor organizations " Hence, the
Respondent's contentions that Wage Earners was not a labor organization within
the meaning of the Act and that the Respondent never intended Wage Earners
to act as such are of no merit. Le Fevre's statements to the employees during
the course of his second talk that Wage Earners would expeditiously and satis-
factorily handle their grievances with management and his invitation to the
employees to submit their grievances through Wage Earners, claiming it could
do as much for the employees in settling grievances as "any union can ," clearly
indicates that the Respondent intended to use Wage Earners as a labor organiza-
32 The undersigned is not unmindful of the fact that any employee may be discharged
for any reason at all except for engaging in activities protected by the Act and that the
employer , under normal circumstances , need not disclose the reason for his action. Under
the circumstances of this case , however, especially in view of the statements made by
White on September 7, wherein he stated , "I intend to fight the unions with every drop
of blood in my veins and every penny in my pockets," coupled with the Respondent 's failure
to explain why McLean 's repeated assurances to Freitas that the latter's job was secure
upon his return from his leave of absence were not kept , the undersigned is of the opinion,
and finds , that it was incumbent upon the Respondent to come forward with evidence to
rebut the present reasonable inference that Freltas was discharged in violation of the Act.
31 Section 2 (5) of the amended Act restates in identical terms the definition of labor
organization contained in the original Act, viz: ". . . any organization of any kind, or
any agency or employee representation committee or plan, in which employees participate
and which exists for the purpose , in whole or in part, of dealing with employers concerning
grievances , labor disputes , wages, rates of pay, hours of employment , or conditions of
work."
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. This is especially true since, 'although present when Le Fevre extended
the invitation to the employees to submit their grievances with management
through Wage Earners, neither White nor any other person in a responsible
position with the Respondent made any protest or disavowal with respect thereto."
. Upon the entire record in the case, the undersigned finds that the Respondent
assisted and supported Wage Earners in violation of Section 8 (a) (2) of the
Act, thereby interfering with, restraining, and coercing its employees in the
exercise of rights guaranteed in Section 7 of the Act.
As far as this record discloses, Wage Earners handled no grievances for the
employees. That fact, standing alone, does not take Wage Earners' connection
with the Respondent outside the pale of the Act and hence cleanse it of its illegal
taint. Wage Earners' present inactive status is not necessarily permanent. It
has never been disavowed or disestablished by the Respondent as an agency for
handling grievances and other personnel problems and the possibility that it may
be revived as such still exists.
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 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 such of them as have been found to be unfair labor
practices, tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices in vio-
lation of Section 8 (a) (1), (2), and (3) of the Act, the undersigned will recom-
mend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the.Respondent has violated Section 8 (a) (2) of the Act
by assisting and supporting Wage Earners, the undersigned will recommend that
it cease and desist from such conduct and withhold recognition from Wage Earn-
ers unless and until Wage Earners has been certified by the board.
Having found that the Respondent has discriminated in regard to the hire
and tenure of employment of Joseph Freitas, the undersigned will recommend
that the Respondent make-him whole for any loss of pay he may have suffered
by reason of his discriminatory discharge on October 2, 1950, the day when
Freitas reported for work after his leave of absence, to March 20, 1951, the date
when the Respondent offered him reinstatement to his former or substantially
equivalent position, by payment to him of a sum of money equal to the amount
he would normally have received as wages, less his net earnings during that
period
Having found that the Respondent hays discriminated in regard to the hire and
tenure of employment of Frank L. Firmat, the undersigned will recommend that
the Respondent offer to Firmat immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority and other
rights and privileges. The undersigned will also recommend that the Respondent
s* Hersey testified that as soon as Le Fevre stated that Wage Earners would handle the
employees ' grievances , he announced to the employees that he would not discuss any griev-
ances or other personnel matters with Le Fevre. As noted above , the undersigned does
not credit this testimony.
81 See Crossett Lumber Co ., 8 NLRB 440.
KNICKERBOCKER PLASTIC CO., INC. 607
make Firmat whole for any loss of pay he may have suffered by reason of the
Respondent's discrimination against him, by payment to him of a sum of money
equal to the amount he would normally have earned as wages less his net earnings.
Back pay shall be paid in accordance with the formula enunciated by the
Board in F. IV. Woolworth, 90 NLRB 289.
The unfair labor practices found to have been engaged in by the Respondent
are of such a character and scope that in order to insure the employees their full
rights guaranteed them by the Act it will be recommended that the Respondent
cease and desist from in any manner interfering with, restraining, and coercing
its employees in their right to self-organization."
It will be further recommended that the allegations of the complaint that the
Respondent granted wage increases to certain employees prior to the Board
election of September 6 and 7, 1950, in violation of Section 8 (a) (1) of the Act,
be dismissed.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists, District Lodge No. 727, and Wage
Earners Committee of the U. S. A., Inc., are labor organizations within the
meaning of Section 2 (5) of the Act.
2. By assisting and supporting Wage Earners Committee of U. S. A., Inc., the
Respondent has engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8 (a) (2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Joseph
Freitas and of Frank L. Firmat, thereby discouraging membership in Interna-
tional Association of Machinists, District Lodge No. 727, the Respondent has
engaged in, and is engaging in, unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
4. By ascertaining the identity of the employees attending the meetings of
the Union and learning what transpired thereat, by threatening its employees
with reprisals unless they discontinued their union activities, by the timing and
the manner of presenting its insurance plan, by promising its employees in-
creased benefits and other rewards if they renounce their union affiliations, by
questioning certain employees regarding their union affiliations and the union
affiliations of other employees, by announcing to its employees that it would only
bargain with them individually and not collectively, and by permitting Le Fevre
to speak to its employees in behalf of, and solicit membership for, Wage Earners
on company time and property while denying the Union permission to address
the employees under like conditions, thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act, the Respondent has engaged, and is engaging in, unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
6. By granting certain wage increases prior to the Board election of September
6 and 7,1950, the Respondent did not violate the Act.
[Recommended Order omitted from publication in this volume.]
38 See May Department Stores, etc v N. L. R. B., 326 U. S. 376.