Olin Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 29, 1951

97 N.L.R.B. 130 (N.L.R.B. 1951)

130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
MEMBER MURDOCK took no part in the consideration of the above
Decision and Direction of Election.
OLIN INDUSTRIES , INC., WINCHESTER REPEATING ARMS IOJIPANY
DIVISION and THE WINCHESTER CLUB , INC. and AMERICAN
FEDERATION OF LABOR. Case No. 1-CA-436. November 29, 1951
Decision and Order
On May 29, 1951, Trial Examiner George Bokat issued b is Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent, Olin Industries, Inc., Winchester Repeating Arms Com-
pany Division, hereinafter called Olin Industries, had engaged in
certain unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. Ile also found
that the Respondent, The Winchester Club, Inc., had not been timely
served with a copy of the charge as required by Section 10 (b) of the
Act, and therefore recommended that the complaint, with respect to
it, be dismissed. Thereafter, Olin Industries filed exceptions to the
Intermediate Report and a supporting brief.
The Board 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
exceptions and brief, and the entire record in the case, and hereby
adopts the findings and recommendations of the Trial Examiner,
with the following exceptions, additions, and modifications.
The initial charge in this case naming Olin Industries was filed
and served on May 16, 1949. Because of the limitation period in Sec-
tion 10 (b) of the Act,' the complaint which might issue based upon
The relevant portion of Section 10 (b) reads
Whenever it is charged that any person has engaged in or is engaging in any such
unfair labor practice, the Board, or any agent or agency designated by the Board for
such purposes, shall have power to issue and cause to be served upon such person
a complaint stating the charges in that respect, and containing a notice of hearing
before the Board or a member thereof, or before a designated agent or agency, at a
place therein fixed, not less than five days after the serving of said complaint:
Provided, That no complaint shall issue based upon any unfair labor practice occur-
ring more than six months prior to the filing of the charge with the Board and the
service of a copy thereof upon the person against whom such charge is made
97 NLRB No. 26.
OLIN INDUSTRIES, INC. 131
this charge could allege as unfair labor practices any activities of
Olin Industries occurring not more than 6 months prior to May 16,
1949.2 However, on September 17, 1949, with the approval of the
Regional Director, this charge was withdrawn; it was later reinstated
by the Regional Director at the request of the charging party on
October 11, 1949. The issue presented by these events is whether in
view of the withdrawal of the charge, the reinstatement of the charge
related back to the date the charge was originally filed and served,
for purposes of computing the Section 10 (b) limitation period.
If not, the discrimination pertaining to McManus, who was discharged
on April 5, 1949, was improperly alleged in the complaint.
The Trial Examiner found that the charge was mistakenly with-
drawn by the charging party, and further that its reinstatement
removed any infirmity caused by the withdrawal; he therefore used
the date of filing and service of the original charge for computing the
6-month limitation period. We disagree.
The Trial Examiner found that Miss Gillis, an AFL organizer,
signed the request for withdrawal of the charge in the mistaken belief
that she was signing an acknowledgment of a dismissal notice. In
making this determination, the Trial Examiner credited the testimony
of Miss Gillis that she signed the "Withdrawal Request" form without
reading it and in the belief that it was an acknowledgment of a dis-
missal. We believe that a substantial preponderance of the evidence
in the record supports a reversal of this finding.
The transcript reveals that Miss Gillis was a literate, intelligent
person with 6 years' experience as an organizer for the AFL and that
she was in charge of. the organizational campaign at Olin Industries.
The NLRB "Withdrawal Request" form 3 which she signed is 8" x 5",
contains very little printed matter, and the words "WITHDRAWAL
REQUEST" appear at the top center in the largest and boldest type on
the form. We do not believe that a person with Miss Gillis' back-
ground who was deemed responsible enough by the AFL to conduct
an important organizational campaign can reasonably be expected to
have signed and returned a legal form sent to her by a Government
agency without noticing the words "Withdrawal Request" in bold
type at the top.
Furthermore the Regional Director, immediately after the signed
"Withdrawal Request" was received by him on September 7, 1949,
allowed the withdrawal and mailed written notifications of the with-
drawal to "The American Federation of Labor, 11 Beacon Street,
Boston, Massachusetts, Attention: Michael J. Walsh, Regional Di-
2 Cathey Lumber Company, 86 NLRB 157, enfd 185 F. 2d 1021 ( C A 5), vacated on
other grounds 189 F. 2d 428 (C. A. 5).
1 NLRB Form No. 601.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rector," as well as to "American Federation of Labor, Labor Temple,
137 Goffe St., New Haven, Connecticut, Attention : C. Josephine
Gillis, Organizer." Although Miss Gillis, who left New Haven before
this notice was mailed, left a forwarding address, she testified that she
never received a notice. However, the copy mailed to Walsh must be
presumed to have been received by him in the absence of any denial of
receipt in the record. Walsh was no stranger to the case. Indeed, -
he had instructed Miss Gillis not to withdraw the charge sometime
before she signed the "Withdrawal Request." Under these circum-
stances we find it difficult to believe that, if the withdrawal of the
charge had not been intentional, Walsh would have waited until De-
cember 11, 1949, more than a month after the notification of with-
drawal was mailed to him, before requesting reinstatement of the
charge.
For the foregoing reasons, we find that the charge in this case was
not mistakenly withdrawn on September 7, 1949. Having -so found,
we need not consider, as did the Trial Examiner in applying the rule
of the Bentley Lumber case,4 the effect, if any, of a mistaken witliin-
drawal on the Section 10 (b) issue.
The Board has held that the proviso to Section 10 (b) enacts a
6-month statute of limitation.-5 In each case, the 6-month period is
determined by the date of filing or service of the charge, whichever is
the later. Thus a day 6 months earlier becomes the cutoff date and
activities occurring before such date may not be alleged as unfair
labor practices, and-what is important in this case-liability for
those same activities is thereby terminated. The practical effect, and
doubtless the intended effects of the proviso to Section 10 (b) is that,
absent the existence of a properly served charge on file, a party is
assured that on any given day his liability under the Act is extin-
guished for any activities occurring more than 6 months before.
The charge in this case was filed and served on May 16, 1949, making
the Respondent liable for its activities occurring after November 16,
1948, but freeing the Respondent of liability for acts preceding that
date. While this charge remained on file, November 16 remained
the cutoff date. However, when on September 7, 1949, the Regional
Director notified the parties that he had approved the withdrawal of
the charge by the charging party, the situation changed. We believe
that on that date, or on any date thereafter on which a charge was
not on file, Respondent had the right under the statute to be assured
AJ. A. Bentley Lumber Co., 83 NLRB 803, enf. 180 F . 2d 727 ( C. A. 5), where , through
the error of a Board agent, the relevant charge was mistakenly withdrawn. We note that
even assuming a mistaken withdrawal in the instant case, the Bentley case would not
necessarily control, because here the mistake was that of a party.
Cat hey Lumber Company, Supra. -
I bid.
OLIN INDUSTRIES, INC. 133
that it would not be held liable for activities occurring more than 6
months ago. Hence, when, on October 5, 1949, no charge was on file,
the Respondent's liability for McManus' discharge, 6 months earlier,
was extinguished by operation of law. To permit the October 17
reinstatement of the charge to revive that liability would amount to
circumvention of the proviso to Section 10 (b). Accordingly, we
shall dismiss the complaint insofar as it alleges the discriminatory
discharge of McManus.'
We perceive no defect in the complaint insofar as it alleges dis-
crimination with respect to Short. The time limitation requirements
of the proviso to Section 10 (b) are met by treating either the rein-
statement of the charge on October 14, 1949,$ or the amended charge
of January 5, 1950, as tantamount to a new charge, either date being
within 6 months of August 13, 1949, the date on which the discrimina-
tion involving Short occurred. For this reason, we find that the
Trial Examiner properly considered the termination of Short's em-
employment on its merits 9 and we adopt his findings and
recommendations.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent Olin Industries, Inc., Win-
chester Repeating Arms Company Division, New Haven, Connecti-
cut, its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in the American Federation of
Labor, by discriminatorily discharging any of its employees, or by
discriminatorily causing such unbearable working conditions as to
force any of its employees to quit, or by discriminating in any other
manner in regard to their hire and tenure of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist American Federation of
Labor, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities except
' Member Houston would affirm the Trial Examiner's finding that the withdrawal was
mistakenly requested and that the discriminatory discharge of McManus was properly
alleged in the complaint. He would therefore consider that allegation on its merits.
"All the parties were notified by the Regional Director of the `reinstatement in a letter
dated October 14, 1949.
9 Member Houston would find that the allegation with respect to Short's discrimination
was properly included in the complaint on the basis of the original charge. See footnote
7, eupra.
986209-52-vol. 97-10
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act, and as guaranteed in
Section 7 thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer George Short immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority or any other rights and privileges.
(b) Make whole George Short in the manner set forth in the section
of the Intermediate Report entitled "The Remedy," for any loss of
pay he may have suffered by reason of Respondent Olin Industries'
discrimination against him.
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security records,
time cards, personnel records and reports, and all other records neces-
sary to analyze the amounts of back pay and the right of reinstate-
ment under the terms of this Order.
(d) Post at its plant at New Haven, Connecticut, copies of the
notice attached hereto marked "Appendix A." 10 Copies of said notice,
to be furnished by the Regional Director for the First Region, shall,
after being duly signed by Respondent Olin Industries or its repre-
sentative, be posted by Respondent Olin Industries immediately upon
receipt thereof and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by Respondent Olin Industries to insure that said notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director for the First Region in writing
within ten (10) days from the date of this Order, what steps Respond-
ent Olin Industries has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint insofar as it alleged that
Respondent Olin Industries engaged in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act by its discharge of
McManus, be, and it hereby is, dismissed.
AND IT IS FURTHER ORDERED that the complaint, insofar as it per-
tains to the Respondent, The Winchester Club, Inc., be, and it hereby
is, dismissed.
MEMBER REYNOLDS took no part in the consideration of the above
Decision and Order.
10 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order ," the words , "A Decree Of.
the United States Court of Appeals Enforcing."
OLIN INDUSTRIES, INC. 135
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 WILL NOT discourage membership of our employees in the
AMERICAN FEDERATION OF LABOR, or in any other labor organiza-
tion, by discriminating in regard to their hire and tenure of em-
ployment, or by discriminatorily causing such unbearable
working conditions as to force any of our employees to quit, or
in any other manner discriminating in regard to any other terms
or conditions of employment.
WE WILL offer George Short immediate and full reinstatement
to his former or substantially equivalent position without preju-
dice to any seniority or other rights and privileges previously
enjoyed, and we will make George Short whole for any loss of
pay suffered as a result of the discrimination aginst him.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
tion, to form labor organizations, to join or assist the AMERICAN
FEDERATION of LABOR, or any other labor organization, to bargain
collectively through representatives of their own' choosing, and
to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all of such activities except to the extent that such right
may be permitted by the provisions of Section 8 (a) (3) of the
Act.
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 permitted by the provisions of
section 8 (a) (3) of the Act. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment
against any employees because of membership in or activity on behalf
of any such labor organization.
OLIN INDUSTRIES, INC., WINCHESTER REPEATING
ARMS COMPANY DIVISION,
Employer.
By -------------------------------------------------
Dated --------------------
(Representative ) (Title)
This notice must remain posted for 60 days from,the date hereof,
and must not be altered, defaced, or covered by any other material.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
Upon an amended charge filed by the American Federation of Labor, herein
called the AFL, the General Counsel of the National Labor Relations Board,
herein called respectively the General Counsel and the Board, by the Regional
Director for the First Region (Boston, Massachusetts), issued his complaint,
dated July 17, 1950, against Olin Industries, Inc., Winchester Repeating Arms
Company Division, herein called Respondent Olin or Olin, and The Winchester
Club, Inc., herein called Respondent Club or Club, alleging that the Respondents
had engaged in and were engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1) and (3) of the National Labor Relations
Act, 61 Stat. 136, herein called the Act. Copies of the amended charge and the
complaint were served on all the parties.
With respect to the unfair labor practices, the complaint alleged in substance
that Respondent Club is the agent of Respondent Olin and that as employers
within the meaning of Section 2 (2) of the Act, both Respondents discharged
John B. McManus in violation of Section 8 (a) (1) and (3) of the Act. The
complaint further alleged that Respondent Olin discharged George Short in viola-
tion of Section 8 (a) (1) and (3) of the Act. Both Respondents filed answers
denying the commission of the alleged unfair labor practices.
Pursuant to notice, a hearing was held on August 7, 8, and 9, 1950, at New
Haven, Connecticut, before George Bokat, the undersigned Trial Examiner duly
designated by the Chief Trial Examiner. All the parties were represented by
counsel and participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence pertinent to the issues
was afforded all parties. During the hearing motions were made by both Respon-
dents to dismiss the complaint an the merits as well as on other grounds. Decision
having been reserved on some of these motions they are disposed of in accordance
with the findings and recommendations hereinafter made. Although the parties
waived their right to present oral argument, all availed themselves of the oppor-
tunity to file briefs with the undersigned. In addition, the Respondent Club
submitted proposed findings of facts and conclusions of law.
Upon the entire record in the case and from observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Respondent Olin, a Delaware corporation, with its principal office in East
Alton, Illinois, is engaged in the city of New Haven, Connecticut, at a plant
known as the Winchester Repeating Arms Company Division, the only plant here-
involved, in the manufacture, sale, and distribution of firearms, flashlights and
flashlight batteries, and other allied products. , In the manufacture of such
products at the New Haven plant, Respondent Olin consumes raw materials in
excess of $1,000,000 annually of which more than 50 percent comes from points
outside the State of Connecticut. Olin's finished products exceed $1,000,000 in
'annual value, of which more than 50 percent is shipped to points outside the
State of Connecticut.
Olin concedes, and I find, that it is engaged in commerce within the meaning
of the Act. At all times material herein, Olin, had in its employ at its New Haven
plant about 5,000 employees.
'OLIN INDUSTRIES, INC. - 137
The Respondent Club, incorporated in the State of Connecticut in May 1922,
is a nonprofit organization existing according to its charter "for the purpose of
promoting indoor and outdoor sports, entertainment , 'social intercourse and
other activities of mutual benefit to the employees of the Winchester Repeating
Arms Company."
The Club denies that it is engaged in commerce within the meaning of the Act
or that the Board has any jurisdiction over it. The evidence shows that the
-Club performs an essential service for Olin by operating the cafeteria which
serves meals on the latter 's premises to Olin employees . In view of this fact
and the relationship of the Club to Olin as is more fully described hereinafter
1 find this contention to be without merit.
II. THE LABOR ORGANIZATION INVOLVED
The American Federation of Labor is a labor organization within the meaning
•of the Act admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The motions to dismiss
The first charge was filed on May 16, 1949, against Olin only, claiming
'discrimination as to four named employees but not including either McManus or
Short, who are named in the complaint herein. On September 8, 1949, the First
Regional Office of the Board received a request from C. Josephine Gillis, an
AFL organizer, on a form submitted by that office to Gillis, asking
withdrawal of the above charge "without prejudice." The Regional Director
.thereupon advised the parties of the withdrawal of the charge without prejudice.
On October 11, 1949, Michael J. Walsh, New England director for the AFL,
and Gillis' superior, wrote to Bernard L. Alpert, the Board's Regional Director,
informing him that "Miss Gillis . . . signed the withdrawal through error,
-on the assumption she was signing an acknowledgment of a dismissal notice,"
and after previously having been instructed by him not to withdraw the charge.'
Walsh requested that the charge be reinstated. On October 14, Alpert notified
the parties "that the charge in this case is reinstated." On November 1, 1949,
Alpert notified the parties that after investigation of the charge of May 16, he
refused to issue a complaint. The AFL appealed this action to the General
Counsel and while this appeal was pending, the AFL, on January 5, 1950,
filed an amended charge which, in addition to naming McManus and Short
for the first time, also named the Club as an employer. On January 6, 1950,
and before any ruling on the appeal, Alpert notified the parties that he was
withdrawing his refusal to issue a complaint. Copies of the amended charge
were served on Olin on January 11, 1950. The Club apparently was not served
with a copy of this charge until July 17, 1950.
Based on these facts and bearing in mind that McManus was discharged on
April 5, 1949, and that Short's employment was terminated' on August 13, 1949,
Olin moved to dismiss the complaint on the ground that: ( 1) The complaint
is based upon an amended charge that is a nullity because the Board has no
published procedure as required by the Administrative Procedure Act giving
a Regional Director authority to reinstate a charge after it has been withdrawn
,or dismissed ; and (2 ) even if the amended charge of January 5, 1950,
'The evidence supports these assertions by Walsh and I find them to be an accurate
reflection of the facts.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be considered as a new charge, that under Section 10 (b) of the Act "the unfair
labor practices alleged occurred more than six months, prior to the service of
a copy of the charge upon Respondent Olin."
The Board has consistently followed the principle laid clown in Cathey
Iiuntber Company 2 that "the proviso to Section 10 (b) merely extinguishes
liability for those unfair labor practices which were committed more than 6
months prior to the filing and service of the charge initiating the case, and . . .
a complaint may lawfully enlarge upon a charge if such additional unfair labor
practices were committed no longer than 6 months prior to the filing and service
of such charge."
It follows therefore that once the Board's jurisdiction is properly invoked
by the timely filing and service of a charge, any unfair labor practice uncovered
while the charge is being investigated and which occurred within 6 months of
the filing and service thereof, can be properly alleged in the complaint even
though not particularized in the charge. And this is also true of unfair labor
practices uncovered which occurred after the filing and service of the charge.
So unless the initial charge of May 16, 1949, is a nullity, the cases of McManus
and Short were properly included in the complaint.' I disagree with Olin's
contention that the May 16 charge having been withdrawn without prejudice and
by error it could not thereafter be reinstated by the Regional Director. The
Board obtained jurisdiction by the filing of this charge, and service of a copy
thereof on Olin effectively tolled the 6-month period. Having once obtained
jurisdiction the Board did not lose such authority, acting as it does in the public
interest and not for the adjudication of private rights, to reinstate a charge
mistakenly withdrawn. It has inherent authority under such circumstances
and would have been remiss if it had not done so, particularly where as here,
Olin was in no way prejudiced by the reinstatement of the charge.' The motion
of Olin to dismiss on these grounds is hereby denied.
A different problem, however, is presented by the conceded failure of the
Club to receive a copy of the charge within 6 months of the discharge of
McManus. The Club moves to dismiss the complaint as to it on this ground.
The General Counsel contends, however, that since, as is more fully discussed
hereinafter, the Club is the creature or alter ego of Olin, service of tale charge
upon Olin was service upon the Club.
I find no merit in this contention. When the original charge was served on
Olin, it named only Olin as the employer, and the Club was not named until
the amended charge was filed, service thereof being made on Olin on January 11,
1950, or more than 6 months after the discharge of McManus. Assuming that
the Club is the alter ego of Olin, I am nevertheless persuaded, since the com-
plaint alleges that the Club as a respondent and a separate entity violated the
2 86 NLRB 157, enforced 185 F. 2d 1021 (C. A 5). One of the Board's latest decisions
applying the Cathey doctrine is to be found in Ferro Stamping and Manufacturing Co.,
93 NLRB 1459.
3 In any event I would find that the charge of January 5, 1950, was sufficient to support
the complaint as to Short , since Olin received a copy of this charge within 6 months after
the termination of Short's employment.
4 See Jersey City Welding it Machine Works, Inc., 92 NLRB 510, footnote 2 ; also J. A.
Bentley Lumber Company, 83 NLRB 803, enfd. 180 F. 2d 727 (C. A 5). In the latter
case the court said, "That the charge , alleging illegal discharges in March and April of
1946 , and filed August 25, 1946 , was dismissed without prejudice, August 15 , 1947 and was
reinstated by the Regional Director May 28 , 1948 when it was ascertained that the dis-
missal resulted from an administrative error, the nature of which appears from the
record , does not require the complaint 's dismissal . Petitioner alleges that it was lulled
into a false sense of security , but fails to show legal prejudice resulting from the reinstate-
ment of the charge."
OLIN INDUSTRIES, INC. 139
Act that it is entitled as such, pursuant to the requirements of Section 10 (b),
to receive a copy of a charge within 6 months after the commission of the
alleged unfair labor practice. The General Counsel seeks a cease-and-desist
order against the Club as a party respondent requiring that as such it take
certain affirmative action designed to effectuate the policies of the Act. The
Club is a "person" as defined in Section 2 (1) of the Act. The proviso to Section
10 (b) states, "That no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge with the Board
and the service of a copy thereof upon the person against whom such charge
is made, ..." (emphasis supplied). Regardless therefore of any legal liability
on the part of Olin for the actions of the Club, the Club, under the clear and
plain wording of language just quoted, was entitled to timely service of a charge
where it is named as a separate and distinct party respondent to the complaint. I
will accordingly recommend that the complaint be dismissed as to the Club.'
B. Relationship of the Club to Olin
The General Counsel contends that Olin and the Club are, within the meaning
of the Act, joint employers of John McManus, whose discharge is an issue
herein, based upon the theory that the Club is the agent, creature, or alter ego
of Olin. The Respondents take issue with this contention. They assert that
the Club, as a distinct corporate entity in no way under the control of Olin,
is the sole employer of McManus, and that the legal relationship of the Club
to Olin is that of an, independent contractor.
The purpose of the Club has been described above. In a booklet dated
August 1947, entitled "HELPFUL INFORMATION FOR MEMBERS OF THE
WINCHESTER FAMILY" distributed to all Olin employees, Olin describes the
Club as follows :
11-FOR YOUR PLEASURE
(Employee Recreation Facilities)
WINCHESTER EMPLOYEES CLUB:
Every employee is a member of the club. The club is maintained and
operated for the benefit of all members, Male and Female.
The administration of the affairs of the club is in the hands of a Board
of Governors (10 members) five elected each year for a period of two
years. The Board of Governors employs a manager i who has general
supervision of all club activities.
The club endeavors to provide members with whatever service is possible
and practical and welcomes suggestions from its members. Present ac-
tivities and services include a cafeteria with prices as near cost as possible,
private dining room for women (Ladies' Lounge), a coffee making station
(in the plant) to provide coffee and crullers for sale at rest periods. Ice
cream is sold in the plant at various locations at special times and vending
machines for candy, gum and peanuts are located throughout the plant.
CLUB STORE:
Cigarettes, cigars, tobacco, candy and numerous other articles can be
purchased at reduced prices. Company made products may be purchased
e See Seamprufe, Incorporated, 82.NLRB 892, where the Board dismissed a complaint
against a respondent union because the charge was directed against "Mavis Lane, Repre-
sentative of the ILGWU." Cf. N. L. R. B. v. Hopwood Retinning Co, 98 F. 2d 97 (C A 2).
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by employees for their personal use only. These products must not be
resold under any conditions.
Bowling alleys and billiard tables are for members ' use at reduced prices.
The athletic program consists of many leagues of intershop competition
in the following sports : Basketball , bowling, golf, hand -ball , horseshoes,
softball and volley-ball. Facilities are available for members to play bad-
minton, cards , checkers and table tennis. Classes for instruction in Archery,
Physical Education and Rifle Shooting are conducted by competent teachers.
OTHER SERVICES :
Include a booth in the club to enable members to pay their electric, gas
and telephone bills on Monday and Friday of each week.
During the fall and winter seasons competent instructors conduct classes
in sewing and Spanish.
The Ladies ' Lounge is available for showers , parties and other employee
activities.
Members in general are invited to use the clubhouse and its facilities
for banquets , testimonials , socials, dances, and other forms of employee
recreation.
For additional information regarding the clubhouse and its activities,
and for the purpose of arrangements for the use of the club on special
occasions , you are requested to contact the Clubhouse Manager.
The only writing indicative of the working arrangement between Olin and
the Club between 1922 and June 1950 when the parties for the first time executed
a formal lease, is a letter found in the files of the Club dated October 11, 1922,
as follows :
To THE WINCHESTER CLUB, INC.
The Winchester Club having been incorporated for the furtherance of
social relations among the employees of the Winchester Repeating Arms
Company, in order to provide a working arrangement between the Company
and the Club , and for purpose of record, the following statement of mutual
relations is made. If this conforms to your understanding, please signify
acceptance of same by letter.
The Company will give the use of its buildings known as L 1 , L 2 and L 4,
located on Henry Street , for the use of the Club in the interest of the
Club members and the Winchester Repeating Arms Company , and will
furnish to the Club , without cost , such water , light, heat and fuel as is
needed for the operation of the Club activities in these buildings . It will
maintain these buildings and premises in suitable condition , but not such
equipment as is the property of the Club.
The Company will carry adequate insurance on the buildings and contents,
and will pay the premiums thereon.
It is the understanding of the Winchester Repeating Arms Company that
the Club desires to become, ultimately , self-supporting. In order to assist
the Club , prior to the period when it shall accomplish this purpose, the
Company will contribute not to exceed $6,000 annually to assist in meeting
administration and operating expenses , the contribution to be paid in
quarterly installments and in amounts requested by the Club and ap-
proved by the Company 's representative , not to exceed $1,500 in any one
quarter. 0
The books of the Club shall be open at all times to inspection by the
representative of the Winchester Repeating Arms Company.
OLIN INDUSTRIES, INC.- 141
The Factory Manager will represent the Company officially, and all mat-
ters connected with this agreement or relating to the mutual interests of the
Winchester Club and the Winchester Repeating Arms Company, shall be
taken up with him by the Club.
The Company will set aside definite accounting symbols and sub-divisions
for use in its accounting in connection with Winchester Club matters, and
any charges it may have against the Club will be billed to the same at the
end of each month.
The Winchester Club shall not sub-let any portion of the buildings men-
tioned above, or of the facilities therein, without the written approval of
the Winchester Repeating Arms Company of all details of the agreement
governing such subrental. Agreement already in existence between the Win-
chester Repeating Arms Company and the Quinnipiac Rifle Club shall con-
tinue until cancelled by either party concerned, and the income resulting
from such agreement will be turned over to the Winchester Club for its use.
Upon request and approval of the Company representative, the Company
and Company organizations shall have the right to use the buildings men-
tioned above and the club facilities therein, at any time for official purposes
or gatherings without cost other than the actual additional cost of operating
for the time used.
The terms of this agreement may be modified with the consent of both
parties thereto, and the agreement may be terminated at the option of either
party on 90 days' notice. The Winchester Repeating Arms Company re-
serve-s the right to terminate the agreement relating to the use of the above
mentioned buildings, without notice, at any time if it shall appear that these
buildings are being used for purposes detrimental to the Company's interest,
or in violation of the law.
HENRY BREWER,
Vice President.
While none of the witnesses familiar with the operation of the Club was able
to state that in fact the 1922 letter actually formed the basis of the arrangement
between Olin and the Club, it is clear from the evidence that the Club continued
to function until the lease of 1950 substantially in conformance with the provi-
sions of the letter. The evidence indicates, however, that at least since 1937
the books of the Club have not been open to inspection by Olin, and the Club,
has been, on the whole, except for being charged no rent by Olin, self-supporting.
The Club derives its revenue from the cafeteria, the sale of coffee, profits from
various vending machines placed throughout the plant, the 5 percent commis-
sion it earns on the sale of Olin products in the club store, and fees for the use
of its recreational facilities. In addition, the Club receives a yearly donation
from an organization known as the Winchester Fund on the basis of 1 dollar
a year per employee. Olin established the Fund in 1928 "to eliminate the neces-
sity of conducting drives each year for each charity." Payroll deductions of
about four-tenths of 1 percent are made from the gross earnings of each em-
ployee and turned over to the trustees of the Fund, composed of supervisory and
nonsupervisory employees of Olin. Quite recently the Club contracted to remodel
part of the premises it occupied, at a cost of $38,500. Olin agreed to pay $18,000
of the amount and the Fund $19,000.
The Club employs about 17 _or 18 employees and has a full-time paid manager
named Albert Weirsman who worked for Olin for 17 years before taking up the
post of club manager. All club employees work on the premises of Olin and '
are subject to the same rules applicable to Olin employees. They are eligible
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to participate in the group insurance plan made available to Olin employees and
to receive first-aid treatment at the hospital facilities maintained by Olin on
its premises. But they do not have the benefit of Olin's pension plan. Club
employees are entitled to use the club facilities which are otherwise limited to
Olin personnel. However, in other respects Olin and the Club operate as sep-
arate legal entities, the Club maintaining its own set of books and bank account
and paying its own employees after making the necessary social security and
tax deductions, besides carrying its own workmen's compensation insurance.
Normally, the Club does its own hiring and firing of its employees. However,
Olin reserves to itself the right to bar from its premises any employee of the
Club as well as the employee of any independent contractor that may be on its
premises. Since all club employees work on the premises of Olin the exercise
of this right by Olin means, in practical terms, that the Club would be com-
pelled to discharge any club employee barred by Olin from its premises. This
happened in the case of club employee McManus, more fully discussed later.
Passes are also issued to all Club as well as Olin employees for the purpose of
entrance to and exit from the plant.
As indicated above, sometime in June 1950, at the request of Olin, the Club
executed its first formal lease, whereby for a period of 10 years and for the
consideration of 1 dollar, Olin leased certain of its buildings to the Club. Olin
can terminate the lease on 30 days' written notice. Prior to the lease Olin pro-
vided these buildings to the Club free of charge together with certain utility
services. Olin maintains the exterior of the Club premises while the Club main-
tains the interior
The affairs of the Club are administered by a board of governors, all em-
ployees of Olin, elected at an annual meeting. During recent years, the board
and the club officers have included both supervisory and nonsupervisory em-
ployees. For example, Francis L. McOartin, president of the Club for the past
8 years is also chief of plant protection for Olin, and from 1946 to June 1950
the office of club secretary was occupied by Olin's personnel manager. Club
officials other than the manager receive no salary, but the time spent during
Olin working time by hourly paid employees on club business is charged to the
Club, whereas the nonhourly paid employees' time such as the supervisors is
absorbed by Olin.
The General Counsel contends that, based on the above facts, not only is Olin
a joint employer with the Club of club employees, within the meaning of Sec-
tion 2 (2) of the Act ° but that in reality the Club is a corporate fiction, and that
Olin is acting for itself through this separate organization.
For an employer to maintain friendly relations with its employees, to make
its plant a more attractive place to work by providing recreational and other
facilities and good food at a modest cost, is indeed a laudable objective. But
it is a management function essentially-one that Olin undoubtedly performed
itself prior to the advent of the Club, and thereafter continued to perform through
the instrumentality of the Club, existing as it does solely to serve Olin em-
ployees. The relationship between the Respondents is not the intermittent,
contractual kind normally entered into between an employer and an independent
contractor It is a relationship which has existed for some 28 years and which
will probably continue to exist so long as Olin believes it and its employees will
benefit thereby. Olin created and supported the Club and gave its employees a
6 "The term 'employer ' includes any person acting as an agent of an employer, directly
or indirectly ..."
OLIN INDUST LTES, INC. 143
-voice in these matters by giving the Club a good deal of autonomy-again an
entirely legitimate and worthwhile purpose. But what Olin gave it could control
or take away-and this is the nub of the controversy as I see it, in determining
whether the employees of the Club were also the employees of Olin.
I am persuaded and find , based upon the particular facts here disclosed, that
Olin is a joint employer together with the Club of the latter's employees. This
is based upon factors already described plus the power of Olin effectively to
control the hire and discharge of club employees , even though there is no evi-
dence in the record that Olin exercised this power in regard to the hiring of
club employees . The fact remains that Olin could exercise it by means of its
pass system . Since the Club, as an instrumentality of Olin, has no function
other than to serve the employees of Olin and because all club employees work
on Olin's premises, Olin could effectively prevent the employment of any indi-
vidual that the Club wanted to hire simply by refusing to issue a plant pass to
the potential club employee . Similarly , Olin has the power effectively to cause
the termination of employment by the Club of any of its employees by barring
a club employee from its premises.
There are other facets of the relationship between the Respondents that point
up the realities relevant to the purposes of the Act. Membership in the Club
is limited to employees of Olin. Therefore the officers and board of governors
of the Club hold their positions therein solely because of, and only as long as
• they are, Olin employees. By its right to discharge Olin employees, Olin has
the power, if it wanted to exercise it, of effectively controlling the policies, em-
ployment or otherwise, of the Club. The test is the right or power to exercise
control. rather than control exercised in fact In still another way the tenure
of club employees, besides being controlled by the same plant rules applicable
to Olin employees, is subject to the will of Olin. The Club would have to dis-
charge its employees whenever Olin decided by a 30-day notice to terminate its
present arrangement with the Club.
While the term "employer" as defined by the Act nicludes any person acting
as an agent of an employer, directly or indirectly, it does not, in my opinion,
preclude a finding that a person may be an employer, although not an agent,
under circumstances such as here disclosed . Therefore regardless of technical
niceties involved in the use of the words "agent" or "independent contractor"
the real issue as I see it is whether the Respondents are joint employers of
club employees or whether the Club is the sole employer . Since I am satisfied,
based upon a preponderance of the evidence taken as a whole, that the Re-
spondents are joint employees of the club employees , I find it unnecessary to
consider the alleged corporate fiction between them.'
C. The discharge of McManus
McManus worked for the Club from December 1943 until his discharge on
April 5, 1949. When hired by Club Manager Weirsman , McManus was not
given a copy of the booklet that Olin distributed to its new employees containing
helpful information and certain rules and regulations . Although McManus
knew that he was subject to these rules no one ever told him what they were,
Weirsman telling him only that he was to conduct himself in "a businesslike
manner."
McManus was in charge of the coffee room where coffee and crullers were
prepared for Olin employees. This room was located in the barrel shop, in a
4 See V L R. B v Condenser Corp., 128 F . 2d 67 (C. A. 3).
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
building separate from the clubhouse. When hired, McManus was given a pass
marked "Outside Contractor Tract A" with his photograph on the reverse side.
The buildings occupied by the Club were designated by Olin as Tract L, but since
some of McManus' duties took him to other buildings of Olin his Tract A pass
gave him such authority. McManus had a man working with him who actually
prepared the coffee. McManus kept charge of all supplies and cash receipts and
assessed the needs of the about 30 to 37 departments that send runners to the
coffee room sometime between 9: 30 to 10 each morning to pick up coffee and
crullers for their respective departments. The same procedure took place
between 3 to 3: 30 in the afternoon for the several departments that worked the
:bight shift. McManus occasionally would visit various departments to check on
the service and other problems that might arise.
The AFL laid plans to organize Olin's employees in September 1948 and held
its first organizational meeting in October at the Labor Temple on Goffe Street
in New Haven! Weekly meetings were thereafter held at the Labor Temple.
On January 20, 1949, McManus received from the AFL a reply to a letter he had
written "asking just what status the clubhouse would have in the cam-
paign . . . ." The reply stated in part :
I'm glad to say that you would come under the jurisdiction of this cam-
paign, as you are definitely employed by the Winchester Arms Co.
Am taking the liberty of enclosing some authorization cards in the hope
you may get some of your fellow workers to sign same and return to us.
For your protection do not have them signed on company time. Do it
before or after your working hours, or lunch period.
Beginning at about this time McManus became active in the AFL campaign by
attending all the weekly meetings held at the Labor Temple and by occasionally
visiting there during the week.
Sometime during the morning of April 5, 1949, Thomas Boak, who was then
works manager for Olin and at the time of this hearing was no longer in its
employ, summoned Club Manager Weirsman and Francis McCartin, Club
president and Olin's plant protection chief, to his office. Boak informed them
that "McManus would not be allowed on the Winchester property . . . for
breaking company regulations." They were not informed of the regulation
McManus was supposed to have violated. McCartin asked Boak if they
"couldn't continue Mr. McManus' time until he had completed his day's
work, . . . and Mr. Boak said, 'Yes."'
This was the first time that Olin had seen fit to bar a club employee from its
premises. There had been no previous complaint by Olin about McManus.
Although McManus was a "very good workman" about whose work there had
been no complaints it was decided to discharge him, to quote Weirsman, "in
view of the fact that he was not to be allowed on the Company premises, which
was the entire club in the factory, why it left us no other . . . recourse because
all our workers work on the Winchester Repeating Arms property, see."
McManus' termination notice reads, "Permission to enter The W. R. A. Co.
property revoked." Later that afternoon McManus was informed of his dis-
charge. He tried to ascertain from Weirsman and McCartin the reason there-
$ The United Electrical , Radio & Machine Workers of America had , over a period of
years, previously made an unsuccessful effort to organize the employees of Olin See the
Board ' s Decision and Order in Olin Industries, Inc., 86 NLRB 203.
OLIN INDUSTRIES, INC. 145
for but other than learning that Olin had barred him from its premises McManus
could not get any specific information
At about this time Boak happened to walk by and McManus asked Boak the
reason for his discharge . Boak's and McManus' version of their conversation
is, as to the crucial part of it, in sharp conflict. A careful analysis of their
testimony, their demeanor while testifying, and the fact that McCartin, who
overheard most of the conversation, substantially supports McManus' version, has
led me to the very definite conclusion that I cannot credit Boak's account.
Since Boak's credibility is involved in other issues to be discussed later, I shall
observe now, that in general I have not been able to credit Boak's testimony
where it conflicts with that of other witnesses I believe to be more reliable.
In reaching this conclusion I have given absolutely no weight to the credibility
findings in the prior Olin case, mentioned above, although I have taken judicial
notice of that Decision and Order.
In quoting as follows from McCartin's testimony about this incident, I am
finding that it occurred substantially as stated by him. McManus asked Boak,
"How come I'm being let out?" Boak replied, "You know why . . . McManus
asked, `Well, just what is it all about?' And Boak again reaffirmed his state-
ment that, `You know what it's all about.' " Boak "then told McManus that he
didn't like the company he kept on Goffe Street." McManus said, "The
Armory is on Goffe Street." Boak replied, "I don't mean the Armory. You
know what I mean." 10
Boak testified, on direct examination, that on the morning of McManus' dis-
charge, a foreman, whose name he did not recall, had told Boak "that his man,
who went to the central coffee dispensing place to get coffee for that depart-
ment, had reported" that McManus had solicited him to join the AFL. On
cross-examination, Boak testified that the foreman had told him, in effect,
"That fellow over in the coffee room is passing out AFL cards and asking the
men to sign them," and did not further identify the man in the coffee shop,
except that the solicitation had taken place that morning at the usual time that
coffee was distributed. According to Boak, he then went over to the coffee room,
saw only McManus there, and assumed therefore that he had engaged in the
solicitation. It should be remembered that two men normally worked in the
coftee room. Boak then decided, without speaking to McManus and without
further investigation, to bar McManus from the premises because of a violation
of rule 19 of the company regulationsl1 McManus, like the employees of any
outside contractor working on Olin property, was subject to Olin's regulations.
Although McManus had never been given a copy of these regulations he had been
warned by AFL organizers not to solicit on company time and property. He
testified that he had never done so. I credit his denial.
u McCartin testified that McManus "wanted to know what he had done. I told him at
that particular time I did not know what he had done " The evidence indicates that
while McManus possibly might have been informed that he had violated a rule it is clear
that neither McCartin nor Weirsman knew what rule had been violated I find it unnec-
essary to resolve what I consider to be relatively minor conflicts in testimony between
McManus, and McCartin and Weirsman.
'" Boak admitted knowing that both the Labor Temple and the Armory were on Goffe
Street He flatly denied making any reference to that street . Boak admitted saying that
he did not like the company McManus kept and gave an implausible explanation of what
he meant in denying any intent to refer to the AFL.
31 "Engaging in propaganda or organizing activities during working hours or engaging
in such activity on the company property during the working hours of other employees,
-or interfering with or molesting employees during their working hours "
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The company regulations provide that "Violation of any rule of the Company
is regarded as grounds for disciplinary action ranging from reprimand to im-
mediate discharge. Company policy will be applied equally in this respect."
Boak testified that if an Olin employee was charged with a violation of any
regulation there would be a complete and thorough investigation and a hearing
before disciplinary action was imposed, and that he was "very tolerant." In.
the case of O1in employee George Short, discussed later, although Olin, claimed
there had been complaints about Short soliciting employees on company time,
it dropped the matter after calling the rule against solicitation to Short's atten-
tion. Boak explained, however, that he felt under no obligation to treat em-
ployees of an outside contractor with the same considerations as Olin employees.
I am convinced that Boak barred McManus from Olin's property because Mc-
Manus was assisting in organizing Olin employees and not because he solicited
any of them on company time and property in violation of a company regulation.
While I have found as a fact that McManus did not violate this rule, even if it
be assumed that Boak believed that he had, I am still persuaded that Boak
was not motivated by this belief but by his opposition to the AFL. Boak, in
telling McManus the reason for his action, said he did not like the company
McManus kept on Goffe Street ; in other words, Boak was barring McManus
from Olin premises because of McManus' association with the AFL.
Since I have found Olin to be a joint employer with the Club of McManus, it
is concluded that Olin discharged McManus within the meaning of Section 8 (a)
(3) of the Act. Even if it be assumed however, that Olin is not an employer
of McManus, I would still find that Olin independently violated Section 8 (a) (1)
of the Act by interfering with, restraining, and coercing its own employees in
the exercise of the rights guaranteed them in Section 7 of the Act. Olin's em-
ployees had the right if they so desired to join a union, and therefore enjoyed
the right to be organized by others. Olin could not interfere with the rights of
its own employees under the Act by preventing legitimate efforts on the part of
the AFL to organize them. Opportunity and freedom to organize is guaranteed
by the Act. McManus, even if a stranger to Olin, was helping the AFL to organ-
ize Olin employees. By impeding and hampering the entirely legitimate activi-
ties of McManus, Olin was thereby interfering with the right of its own employees
to full freedom of association in violation of Sections 7 and 8 (a) (1) of the
Act. And whether the discharge of McManus or his being barred from Olin
property be viewed as a violation of Section 8 (a) (1) or 8 (a) (3) of the Act,
I would still find it necessary in order to effectuate the policies of the Act that
Olin take the affirmative action hereinafter recommended .12
12 See Republic Aviation Corp. v. N L. R. B., 324 U. S. 793, where the Supreme Court
said that the Act
did not undertake the impossible task of specifying in precise and unmistakable langu-
age each incident which would constitute an unfair labor practice. On the contrary
that Act left to the Board the work of applying the Act's general prohibitory language
in the light of the infinite combinations of events which might be charged as viola-
tive of its terms. Thus a "rigid scheme of remedies" is avoided and administrative
flexibility within appropriate statutory limitations obtained to accomplish the domi-
nant purpose of the legislation. Phelps Dodge Corp v. N L. R B , 313 U. S. 177, 194.
So far as we are here concerned that purpose is the right of employees to organize for
mutual aid without employer interference.
Cf. N. L. R. B. v. May Department Stores, 154 F. 2d 533 (C. A 8) ; cert denied 329
U. S. 725, where the court, at p. 539, discusses the case of a demonstrator named King,
who demonstrated and sold the goods of a certain manufacturer at the May store and
whose remuneration was paid by the manufacturer . The court affirmed the Board's find-
ing that the May store was responsible for causing the manufacturer to terminate King's
services because she had joined a union.
OLIN INDUSTRIES, INC.
D. The termination of Short's employment
147
George Short was employed by Olin continuously from March of 1922 until
August 13, 1949, when his employment ended under circumstances herein de-
scribed. Short was employed in the transportation department as a truck driv-
er's helper and for the 5-year period preceding his termination worked with the
same truck driver, Edmond Condon.
In 1942 the United Electrical, Radio and Machine Workers of America began
to organize Olin's employees. Short became active in the campaign and in Sep-
tember 1942 became president of a local of this union. He continued as presi-
dent until July 1947 when the union withdrew its campaign and the local
dissolved. When the AFL began to organize Olin employees in the fall of 1948,
Short became a very active participant and attended all meetings of the AFL
at the Labor Temple.
Beginning late in 1932 there developed a rather unusual relationship between
Short, the truck driver's helper, and Boak, the works manager of Olin. Short
reported for work shortly before 7 a. in. each day. Boak, who came to the plant
at about the same time and parked his car in the garage where the transporta-
tion department was located, would see Short practically every morning and
converse with him. From then until 1942 when Short became active in union
affairs, the topic of discussion often turned to politics, Short being a staunch
Democrat and New Dealer and Boak just as strong a Republican They "kidded"
each other in a friendly vein about their political views, Short giving as good as
be received.
Unionism was not discussed until Short became active in the campaign of
the United Electrical Workers Union and was elected president of the local.
The tenor of the conversations thereafter gradually became more serious and
less friendly, with Boak constantly bringing up the subject of unionism and
"riding" Short on the subject. For example, Boak would refer to Short's presi-
dency of the local by addressing him as "Mr. Presi-dump." Or on an occasion
while Short was loading brick, Boak remarked, "That's a hell of a job for a
big official like you to be doing." Each would get sufficiently riled on occasion
to lose his temper. But "I don't fly off the handle like Mr. Boak does," testified
Short. "He used to get so riled, he'd take that overnight bag and throw it up
in the air and go over and stamp on it, and he'd start calling me a lot of names.
I'd walk away."
There is not too much dispute in the testimony of Short and Boak as to their
relationship and conversations up until the time Short became active.in the AFL.
As to what happened from then on and particularly as to the events of the
morning of August 13, 1949, their testimony is in sharp conflict. I have already
indicated that I could not credit Boak's testimony in the face of what, after
careful analysis, I considered to be more reliable testimony. Short's recital
of the events of August 13 is corroborated in substance by Condon, still presently
employed by Olin as a truck driver. It is my considered judgment that both
Short and Condon are more reliable witnesses than Boak. In view thereof it
would serve no useful purpose in reciting the following events to detail the
conflicting testimony. It is based primarily upon the testimony of Short and
Condon and is denied in its essential details by Boak.
To give the flavor of the kind of remarks Boak was making to Short after
the AFL campaign started I am compelled to refer to several made prior to
August 13, 1949. One morning in November 1948, when the female AFL or-
ganizer previously adverted to was passing out leaflets at the plant gate, Boak,
holding up a leaflet in his hand, said to Short, "I see your girl friend out there
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the job, Georgie . . . How is she ? Is she as good - a piece of - as
satchel -?" I have inserted dashes for the word actually appearing
in the transcript, and while I have no desire to offend the sensibilities of who-
ever may happen to read this decision in reporting the kind of'obscenity used by
Boak to Short on this and on later occasions which I will describe, nevertheless,
since it is the theory of the General Counsel that Short was compelled to quit
his job on August 13 because of the actions and statements of Boak, paraphras-
ing Boak's language will not give an accurate picture and therefore my apologies
to the reader . "Satchel --" referred to above was a term sometimes used
to describe a female organizer of the United Electrical Workers.
On another occasion Boak again referred to the AFL organizer when he said
to Short, "I always knew that you were a tight - of a - [but] I didn't
think you were so tight you'd let a lady pay for your fees " Just prior to this
incident, on an occasion when Short had coffee with the AFL organizer following
a union meeting, she had paid the check.
Sometime late in 1948, Boak said to Short while the latter was loading a
truck, "you wouldn't have to be wearing them overalls and jumper . . , if you
give up this foolish stuff you're doing with that organization."
On April 22, 1949, Short was summoned to the personnel office where he was
informed by Louis Izzo, a personnel supervisor, that complaints had been re-
ceived that Short had been soliciting for the AFL on company time and property.
Short denied the charge and asked that the informers be produced. Izzo said
it was unnecessary, that he did not know whether Short had solicited or not
but called Short's attention to the rule forbidding that kind of solicitation.
On August 12, 1950, the Board held an election for Olin employees. Short
served as an AFL teller. The AFL lost the election. There were 1,392 votes for,
and 2,897 votes against, the AFL. The next day Short reported for work. He
met Condon on the street and they entered the plant premises together. As they
entered the garage Boak stepped up to Short and said, "I didn't think you'd have
nerve enough to come in here and face a group of good living people, you
of a -." Short made no reply and continued to walk toward the time
clock in order to check in with Boak walking alongside of him. As they walked
Boak continued to taunt Short about the loss of the election the day before.
Whatever the cause, maybe Short's continued silence, but Boak's anger mounted
until he was in a fury and he completely lost control of his temper. He shouted
vile and obscene remarks at Short to such an extent, that after punching the
time clock," Short turned to Boak, pulled out his company pass and asked Boak
if he wanted it.14 Boak replied that he did not.
1s The time card records show that Condon clocked in at 6: 54 a . in. and Short at 6: 57
a. in.
14 Short testified that Boak was in such a "fury" that "I thought he wanted me to
quit" and that is why he offered Boak his pass . Boak admitted that Short offered him
his pass but denies losing his temper or castigating Short with vile and obscene names.
Boak testified that he told Short, "You have a lot of nerve coming in here this morning
to go to work after the beating you and your friends took yesterday"; that Short just
"grunted" and Boak again said , "I'd think you 'd be ashamed to come in here after getting
such a beating and go to work " ; that Short did not reply , whereupon Boak said, "Well,
I'm awfully glad to know that there are a lot of people in this plant who have a lot
of common sense and who know what the score is, and I think that three to one licking
you fellows got yesterday indicates that the plant is satisfied with conditions as they are."
According to Boak , Short then offered his pass and after refusing to accept it, Boak then
left the garage But according to Short's credited - testimony , corroborated by that of
Condon, which I am now about to relate above, Boak did not then leave the garage and
the final incident occurred that made Short quit.
OLIN INDUSTRIES, INC. 149
Short then turned and walked the 35 to 40 feet where his truck was located.
Boak continued to follow him still shouting imprecations . "They got down to the
truck, and George started to get on the truck," testified Condon. "Soak said, `No,
you're not getting on that truck.' . . . `But you'll work you - of a -.
You'll work until the sweat and blood comes down your back , you -. "
It was at this point that Short decided to quit his employment and started
towards the door of the garage with Boak still following and cursing him.
When they reached the door Boak told Short to go down to the hotel where
the female organizer lived and made a lewd remark as to what Short could do
with her all day. Short has not returned to the plant since that day.
It is the contention of the General Counsel that Short, because of his AFL
activities , was forced to quit his employment and that if he remained his condi-
tions of employment would be made intolerable . Olin on the other hand con-
tends that Short voluntarily quit and even if his version of the events of August
13 be accepted that it does not add up to a constructive discharge. "The only
reasonable interpretation of the incident ," says Olin , "is that Short , greatly upset
by the loss of the election , could not take the riding Boak was giving him, in
accordance with fheir usual practice , and quit."
The evidence does not support the latter contention of Olin. While Short felt
badly because of the loss of the election , he "got over it that night ." He testi-
fied, "If I was ashamed or felt badly , I wouldn 't have gone into the plant" the
next morning . He denied , and I believe him, that he did not have a "chip on his
shoulder" because the AFL lost the election . "If I had a chip on my shoulder,
I would have said something " to Boak, Short testified.
If Boak had ceased abusing Short after Boak had declined Short's pass and
then Short had quit, a much more difficult problem would have been presented.
But not only did Boak continue to abuse Short , he also refused to let him get on
the truck and threatened to make Short 's future working conditions so intoler-
able as to cause "the sweat and blood " to come down his back. Under these
circumstances , I am persuaded and find that Boak forced Short ' s resignation
regardless of whether it be considered as the result of a coldly planned stratagem
or as an explosive fit of temper . In either event it was brought about primarily
because Short openly and actively espoused the cause of unionism among Olin's
employees . Short demonstrated remarkable restraint under great provocation.
Except for offering Boak his pass , Short did not answer Boak and continued to
walk away from him and go about his assigned duties but Boak pursued him with
taunts about the loss of the election and a torrent of obscene invective. When
it reached the point where Boak would not let him get on the truck and made
the-sweat and blood threat, Short had enough , he could not take it any more and
quit. What else could a decent and self-respecting employee-one who had been
in the employ of the company for 22 years-do? An employer cannot avoid his
responsibilities under the Act by creating a situation so unbearable to an em-
ployee because of his union activities , and so detrimental to harmonious and
constructive working conditions , that the employee is forced to relinquish his
position rather than continue in such a situation.
I find that by constructively discharging George Short, Olin violated Section
8 (a) (3) and (1) of the Act. And whether Short's discharge be viewed as a
violation of Section S (a) (1) or 8 (a) (3) of the Act, I would find it necessary
in order to effectuate the policies of the Act to recommend that he be reinstated
with back pay.
986209-52-vol. 97-11
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Olin set forth in Section III, above, occurring
in connection with the operations of Respondent Olin described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes burdening
and obstructing commerce, and the free flow of commerce.
V. THE REMEDY
Having found that Respondent Olin has engaged in the unfair labor practices
set forth above, I will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Since McManus does not desire reinstatement it will be recommended that
Olin make him whole for any loss of pay from April 5, 1949, the date of his dis-
charge, to September 25, 1949, the date when he obtained his present employment16
It will be further recommended that Olin remedy its discrimination against
Short by offering to him immediate and full reinstatement to his former or sub-
stantially equivalent position 19 without prejudice to his seniority or other rights
and privileges. It will be recommended further that Olin make him whole for
any loss of pay that he may have suffered by reason of Olin's discrimination
against him. In accordance with the Board's policy,1' I shall recommend that
the loss of pay for both McManus and Short be computed on the basis of each
separate calendar quarter or portion thereof during the period from the respec-
tive discriminations to the date of a proper offer of reinstatement in the case of
Short, and to September 25, 1949, in the case of McManus. The quarterly
periods, hereinafter called "quarters," shall begin with the first day of January,
April, July, and October. Loss of pay shall be determined by deducting from a
sum equal to that which each of the employees discriminated against would
normally have earned for each quarter, or portion thereof, less his net earnings,1°
if any, in other employment during that period. Earnings in one particular
quarter shall have no effect upon the back-pay liability for any other quarter.
I shall also recommend that the Respondent make available to the Board, upon
request, payroll and other records to facilitate the checking of the amount of
back pay due.19
The violations of the Act which Olin committed are persuasively related to
other unfair labor practices proscribed by the Act, and the danger of their com-
16I would recommend the same remedy on the alternative theory found above that Olin
violated Section 8 (a) (1) even if Olin was not a joint employer of McManus The
Supreme Court has held that the term "employees" in Section 10 (c) of the Act, standing
as it did "unqualified and undifferentiated ," Included members of the working class whether
or not they stood in the proximate relationship of employee with respect to any particular
employer . See Phelps Dodge, footnote 12, supra.
38 In accordance with the Board's consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible and if such position is no longer in existence then to a substantially equivalent
position ." See The Chase National Bank of the City of New York, an Juan, Puerto
RICO, Branch, 65 NLRB 827.
17 F. W. Woolworth Company, 90 NLRB 289.
38 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for this unlawful discrimination , and the
consequent necessity of his seeking employment elsewhere . Crossett Lumber Company,
8 NLRB 440 . Monies received for work performed upon Federal , State, county, muni-
cipal , or other work-relief projects shall be considered earnings . Republic Steel Corpora-
tion v. N. L R. B., 311 U. S 7.
19F. W. Woolworth Company, supra.
COCA-COLA BOTTLING COMPANY OF ASHEVILLE, N. C. 151
mission in the future is to be anticipated from Olin's conduct in the past 20 The
preventive purposes of the Act will be thwarted unless the order is coextensive
with the threat. In order, therefore, to make more effective the interdependent
guarantees of Section 7, to preventva recurrence of unfair labor practices, and
thereby minimize industrial strife which burdens and obstructs commerce, and
thus effectuate the policies of the Act, it will be recommended that Olin cease
and desist from infringing in any manner upon the rights guaranteed in Section
7 of the Act.
Upon the basis of the above findings of fact and upon the entire record of
the case, I make the following :
CONCLUSIONS of LAW 22
1. American Federation of Labor is a labor organization within the meaning
of Section 2 (5) of the Act.
2. Respondent -Olin is a joint employer together with Respondent Club of
John McManus.
3. By discriminating in regard to the hire and tenure of employment of John
McManus and George Short, Respondent Olin has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
4. By such discrimination and by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
the Respondent has engaged in 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 affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. Respondent Club has not been timely served with a copy of a charge as
required in Section 10 (b) of the Act.
[Recommended Order omitted from publication in this volume.]
20I would recommend this type of order regardless of the Board's prior finding that Olin
had violated the Act.
21 Since I have recommended that the complaint against the Respondent Club be dis-
missed, I find it unnecessary to pass upon the Club's proposed findings of fact and con-
clusions of law.
COCA-COLA BOTTLING COMPANY OF ASHEVILLE, N. C. and UNITED
FURNITURE WORKERS OF AMERICA, CIO. Case No. 34-CA-252.
November 29, 1951
Decision and Order
On July 13, 1951, Trial Examiner Henry J. Kent issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
97 NLRB No. 27.