Service Metal Industries

National Labor Relations Board - Board Decisions

Sep 6, 1951

96 N.L.R.B. 10 (N.L.R.B. 1951)

10 DECISION& OF NATIONAL. LABOR RELATIONS BOARD
guards, professional employees, the yardmaster, head mechanic, shift
foreman, head welder, head pipefitter, head painter, head labor fore-
man, head warehouse clerk, head electrician, head boilermaker and
sheet metal worker, head carpenter, head operator, head lead burner,
head brickmason, and all other supervisors, constitute a unit appro-
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.]
JOSEPH J. MICHALIK , D/B/A SERVICE METAL INDUSTRIES and INTERNA-
TIONAL UNION , UNITED AUTOMOBILE , AIRCRAFT & AGRICULTURAL IM-
PLEMENT WORKERS or AMERICA (UAW-CIO). Case No. 7-CA-
446. September 6, 1951
Decision and Order -
On May 15, 1951, Trial Examiner Robert E. Mullin 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made at
the hearing and finds that'no prejudicial error was committed. The
.rulings are hereby affirmed .2 The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in this
,case,3 and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.4 ' .
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
-Board has delegated its powers in connection with this proceeding to a three -member
.panel [ Members Houston , Reynolds , and Styles].
2 The Respondent moved to dismiss the complaint on .the ground , inter alia , that the
UAW-CIO and Its Local 408 had not complied with Section 9 (f) and ( g) of the Act in
that they had not furnished an annual financial report to their members. The fact of
compliance by a labor organization which is required to comply , is a matter for adminis-
trative determination and is not litigable by the parties Moreover , the Board is admin-
istratively satisfied that UAW-CIO and its Local 408 were in compliance at least as of
the time of the issuance of the complaint and all material times thereafter . See Sunbeam
Corporation, 94 NLRB 825; Cf. Highland- Park Manufacturing Co., 71 Sup. Ct. 489.
Under the circumstances , we affirm the Trial Examiner's denial of the motion to dismiss
the complaint on this ground.
2 The Respondent' s request for oral argument is hereby denied, because the record,
exceptions , and brief , in our opinion, adequately present the issues and positions of the
parties.
4 In finding that the Respondent independently violated Section 8 (a)' (1) of the Act,
we do not rely on the statement of Ruth Young , found by the Examiner in Section III
E of the Intermediate Report, that rather than ` vote for the Union it would be more
advantageous in the settlement of their grieyagces to form a committee of 4 or 5 employees
that could meet with management.
96 NLRB No. 6.
SERVICE METAL INDUSTRIES 11
Order
Upon the entirA 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, Joseph J. Michalik, d/b/a
Service Metal Industries, his agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America
(UAW-CIO), or in any other labor organization of its employees, by
discriminatorily discharging any of his employees, or by discriminat-
ing in any other manner in regard to their hire or tenure of employ-
ment or any other term or condition of employment, except to the
extent permitted by the proviso to Section 8 (a) (3) of the amended
Act.
(b) Refusing, upon request, to bargain collectively with Interna-
tional Union, United Automobile, Aircraft & Agricultural Implement
Workers of America (UAW-CIO), as the exclusive representative of
all his employees except office and clerical employees, guards, sales-
men, professional employees, and supervisors.
(c) Interrogating his employees as to their union membership, ac-
tivities, or sympathies.
(d) Threatening his employees with loss of employment or any
other economic reprisal because of their union membership, activities,
or sympathies.
(e) Taking unilateral action, or dealing directly with individual
employees, in derogation of their bargaining representative, with re-
spect to any matter properly the subject of collective bargaining.
(f) In any other manner interfering with, restraining, or coercing
his employees in their exercise of their rights of self-organization, to
form labor organizations, to join or assist International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America
(UAW-CIO), or any other labor organization, to bargain collectively
through representatives of their own choosing, 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, ex-
cept to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of employ-
ment, as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act : •
(a) Offer to Lydia DeDiana immediate and full reinstatement to
her former or a-substantially equivalent position without prejudice
to her seniority or other rights and privileges.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole Lydia DeDiana and the employees listed in Ap-
pendix A hereof in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy," for any loss of pay they may
have suffered by reason of the discrimination of the Respondent
against them.
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due.
(d) Upon request, bargain collectively with International Union,
United Automobile, Aircraft & Agricultural Implement Workers of
America (UAW-CIO), as the exclusive representative of all the em-
ployees in the above-described unit, with respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment.
(e) Post at his plant in Detroit, Michigan, copies of the notice at-
tached hereto and marked "Appendix B." 5 Copies of said notice, to
be furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by the-Respondent or his -represelitatiye, be
posted by the Respondent immediately upon receipt thereof and main-
tained by him for sixty (60) consecutive days thereafter in conspicu-
ous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for the Seventh Region, within
ten (10) days from the date of this Order, what steps the Respondent
had taken to comply therewith.
Appendix A
Louise Anderson
June Brown
Pauline Cherry
Josephine Clark
William A. Donahey
Sophie Dymkowski
Catherine Gleason
Mary Kapryan
Mary Marolla
Opal Reddick
Genevieve Ruda
John Sak
Pauline Tower
Donalda Vieaux
Antoinette Voss
Walter J. Zakrzewski
John-Zielony
5In 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."
SERVICE METAL INDUSTRIES
Appendix B
NOTICE TO ALL EMPLOYEES
J3
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, I hereby notify my employees that :
I WILL NOT discourage membership in INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW-CIO), or in any other labor organi-
zation, by discriminatorily discharging any of my employees,
or by discriminating in any other manner in regard to their hire
or tenure of employment or any terms or conditions of employ-
ment, except to the extent permitted by the proviso to Section 8
( a) (3) of the amended Act.
I WILL NOT interrogate my employees as to their union mem-
bership , activities , or sympathies.
I WILL NOT threaten any of my employees with loss of employ-
ment or any other economic reprisal because of their union mem-
bership , activities, or sympathies.
I WILL NOT take unilateral action , or deal individually with em-
ployees in derogation of their bargaining representative with
respect to any matter properly the subject of collective bargain-
ing.
I WILL NOT in any other manner interfere with, restrain, or
coerce my employees in the exercise of their rights of self -organi-
zation , to form labor organizations , to join or assist INTERNA-
TIONAL UNION , UNITED AUTOMOBILE , AIRCRAFT & AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA (UAW-CIO ), or any other
labor organization , to bargain collectively through representatives
of their own choosing, to engage in mutual aid or protection,
or to refrain from any or all of such activities , except to the
extent that such right may be affected by an agreement requiring
membership in a labor organizataion as a cpnzlition of employ-
ment, as authorized by Section 8 (a) (3) of the Act.
I WILL offer Lydia DeDiana immediate and full reinstatement
to her former or substantially equivalent position without prej-
udice to any seniority or other rights and privileges previously
enjoyed , and make her whole for any loss of pay suffered as a
result of the discrimination against her.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I WILL make whole each of the following named employees for
any loss of pay suffered by them as a result of the discrimination
against them :
Louise Anderson Opal Reddick
June Brown Genevieve Ruda
Pauline Cherry John Sak
Josephine Clark Pauline Tower
William A. Donahey Donalda Vieaux
Sophie Dymkowski Antoinette Voss
Catherine Gleason Walter Zakrzewski
Mary Kapryan John Zielony
Mary Marolla
I WILL bargain collectively, upon request, with the above-named
union as the exclusive representative of all my employees in the
bargaining unit described herein with respect to rates of pay,
hours of employment, or other conditions of employment. The
bargaining unit is :
All employees, except office and clerical employees, guards,
salesmen, engineers , professional employees, and supervisors.
All my employees are free to become, remain, or refrain from be-
coming members of the above-named union, or any other labor organi-
zation except to the extent that such right may be affected by a lawful
agreement requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8 (a) (3) of the Na-
tional Labor Relations Act. I will not discriminate against any em-
ployee in regard to the hire or tenure of employment or any term or
condition of employment because of membership in or activity on
behalf of any such labor organization.
JOSEPH J. MICHALIK, d/b/a
SERVICE METAL INDUSTRIES
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
Upon charges duly filed by International Union, United Automobile, Aircraft
& Agricultural Implement Workers of America (UAW-CIO), herein called the
SERVICE METAL INDUSTRIES 15
Union (or UAW) ; the General Counsel for the National Labor Relations Board,
by the Regional Director for the Seventh Region (Detroit, Michigan), issued a
complaint, dated February 21, 1951. In this complaint it was alleged that by
discriminatorily discharging an employee on June 8, 1950, locking out 17 em-
ployees on December 4, refusing to bargain with the Union, and by other conduct,
the Respondent had engaged in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein
called the Act. Copies of the charges, the complaint, and notice of hearing
were duly served upon the parties. In his answer, duly filed, the Respondent
admitted certain facts with respect to his business operations but denied that
he was engaged in commerce within the meaning of the Act or that he had
committed the alleged unfair labor practices.
Pursuant to notice, a hearing was held on March 12, 13, 15, 16, and 17, 1950,
at Detroit, Michigan, before the undersigned Trial Examiner duly designated
by the Chief Trial Examiner . The General Counsel and the Respondent were
represented by counsel and the Union by an authorized representative. All
parties were afforded opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues.
At the outset of the' hearing the Respondent moved to dismiss the complaint
upon the following alleged grounds: (1) The Union and its Local 408 had
not complied with Section 9 (f) and (g) of the Act in that they had not furnished
an annual financial report to their members; (2) the allegations in the com-
plaint were without basis in fact; (3) the Regional Office had "prejudged this
matter and had been and was unable to fairly consider the matters involved" ;
and (4) in 1950 the Respondent was not subject to the jurisdiction of the Act.
After hearing argument of counsel, the undersigned denied the motion. When
the Respondent renewed this motion at the close of the case the Trial Examiner
reserved ruling thereon.
The motion is now denied. The Board : as well as the United States Courts
of Appeals for several of the circuits 8 have held that compliance with Section
9 (f), (g), and (h) of the Act is an administrative matter not subject to
collateral attack ° Nor is there any merit to the Respondent's second ground,
for any opinion or, attitude of the -Regional Office, even assuming , mrguendo,
that 'it was adverse to the-Respondent, would not constitute r an adjudication
or final disposition of the issues in this proceeding and would be'irrelevant to
a determination by the Trial Examiner as to whether there Iis substantial
evidence to support the allegations in the complaint. Cf. N. L: R. B. v. Baltimore
Transit Co., 140 F. 2d 51 (C. A. 4), cert. denied 321 U. S. 795; J: H. Rutter-Rex
Mfg. Co., 86 NLRB 470. The remaining points raised by the Respondent' s motion
are disposed 'of in the. manner indicated in the body of this Report.
After the receipt of the evidence the undersigned granted an unopposed mo-
tion by the General • Counsel to conform the pleadings to the proof with respect-
. - n .
I'The General Counsel and the attorneys representing him at the hearing are referred to
as the General Counsel ; the National Labor Relations Board as the Board. .
r 2 Metropolitan Life Insurance Co., 91 NLRB 473, footnotes 1 and 2 ,' and cases cited
therein.
BY. L. R. B . v. I; F. Sales 'Company, 188 F. 2d 931 (C. A. 6) ; N. L. R. B. V. Wiltse,
d/b/a Ann Arbor- Press, 188 F. 2d 917 (C. A 6) ; N. L R. B. v. Vulcan Forging Co., 188
F. 2d 927 (C. A. 6) ; N. L. R. B. v. Greensboro Coca-Cola Co., 180 F. 2d 840 (C. A. 4) ;
N. L R. B. v. Red Rock Company, at al., 187 F. 2d 76 (C. A. 5).
* Aside from endeavoring to subpena an officer of the UAW, the Respondent made no
effort to prove affirmatively that the charging Union had failed to comply with the provi-
sions of Section 9 (f) and (g): .
16 DECISIONS, OF NATIONAL LABOR AEL'ATIONS BO11RD
to minor matters such as names and dates. Opportunity was afforded all
parties to argue orally at the close of the hearing . Argument was had by both
the General Counsel and the Respondent . All parties were likewise advised that
they might file briefs with the Trial Examiner . Subsequent to the hearing, on
April 16, 1951, a brief was received from the Respondent which has been carefully
considered by the undersigned.'
The Respondent's Motion for a Continuance
i
I
Shortly before adjournment on the first day of the hearing, counsel for the
Respondent requested a week's continuance because he would be engaged in a
criminal matter that was set for trial the following morning in the Detroit
Recorder's Court. This motion was opposed by the General Counsel, on the
ground that it was not timely, since no such request had been made to the
Regional Office prior to the hearing," and that any postponement would seriously
inconvenience a large number of witnesses who had already been subpenaed.
There being, in the opinion of the Trial Examiner, no proper showing why the
hearing should be postponed, Respondent's motion was denied. To afford counsel
for the Respondent an opportunity to request a postponement of his case in the
Recorder's Court, however, the Trial Examiner then adjourned the hearing until
10: 15 a. in. the next day. Upon reconvening at this hour on March 13, the
associate and law partner of counsel for the Respondent appeared at the hearing
to state that her brother would be engaged for several days in the trial of People v.
Welke in the Recorder's Court, the presiding judge having refused to permit any
delay in that case. Si}e then asked for a continuance until the conclusion of the
latter trial, stating that she was unprepared to go forward with the Respondent's
case because of unfamiliarity with the issues 7 and because her health no longer
permitted her to engage in active trial work. To afford the Respondent an
opportunity to secure other counsel if he so desired, the undersigned then granted
a continuance of the hearing until March 15. When the hearing reconvened on
the latter date Miss Davidow appeared on behalf of the Respondent, remained
throughout the balance of the hearing, and participated fully in the cross-exami-
nation of the General Counsel's witnesses, the presentation of the Respondent's
case, and oral argument at the close of the hearing.
In the Respondent's brief it is again urged that Mr. Davidow should have had
an opportunity to participate throughout the case and that it was prejudicial to
deny his request that the hearing be continued until the end of the Welke trial.
3 The parties stipulated at the hearing that certain exhibit numbers be reserved for a
deposition which the Respondent proposed to submit and an excerpt from a court record
which the General. Counsel desired to offer. To afford the parties time to prepare these
exhibits subsequent to the close-of`the hearing , th Trial -Examiner ordered that the record
be kept open until March 30, 1951 , on which date the record would be closed without further
order. In due course the exhibits were forwarded to the Trial Examiner and marked
with the appropriate numbers. These exhibits, General Counsel's Exhibit No. 23 and
Respondent ' s Exhibit No. 20, are now received in evidence.
On April 3 , 1951, the General Counsel filed a motion to correct various errors in the
transcript of testimony . Later, the Respondent filed objections to the proposed correc-
tions. On May 8, 1951, the Trial Examiner 's order to correct the transcript was served on
the parties . The motion of the General Counsel, the objections of the Respondent , and the
subsequent order of the undersigned correcting the transcript have been designated as Trial
Examiner's Exhibit 1-A, 1-B, and 1-C, respectively , and are hereby received in evidence
as part of the record.
"The complaint and notice of hearing were issued on February 21, 1951 . The Respond-
ent promptly filed both a motion to dismiss the complaint and an answer , on February 27,
but at no time prior to the hearing made any request for a continuance.
She had , however, signedoboth ;.the answer-and the motion to dismiss as-counsel- for the
Respondent. °
SERVICE METAL INDUSTRIES 17
Under the circumstances present here, however, and taking into. consideration
the convenience of all the parties, in the opinion of the undersigned, the Respond-
ent made a totally inadequate showing in support of the lengthy postponement
requested. Moreover, in view of the objection which counsel has raised anew
in her brief it should be noted that Mr. Davidow's problem was entirely of his
own creation. After the 2-day recess which was granted, the General Counsel
called as witnesses Jack La King, docket clerk of the Recorder's Court, and
Lieutenant Thomas Maxon of the Detroit Police Department. Both credibly
testified, and their testimony was undenied, that in the course of their official
duties they had attended a conference in the Recorder's Court on March 7, 1951,
at which the presiding judge asked Mr. Davidow to suggest a trial date for the
Welke case. According to both La King and Maxon, Davidow asked that the
Welke case be set for trial on March 13 and at no time during the conference
mentioned to the judge that he was counsel in a Board proceeding that would
begin on March 12 or that there was any possibility of a conflict-between the two
cases. It is thus apparent that prior to the Board hearing counsel for the Re-
spondent himself had made no effort to-prevent the conflict in his schedule which
arose.
Upon the entire record in the case, and from his observation of the demeanor of
the witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, Joseph J. Michalik,' is an individual doing business as Service
Metal Industries, with his principal office and only manufacturing plant in De-
troit, Michigan, where he is engaged in the manufacture of brass refrigeration
fittings and related products. He purchased approximately $150,000 worth of
brass forging rods in 1949, and approximately $300,000 in 1950, all of which were
made at the Detroit plant of the American Brass Company. Although at the
hearing Michalik disclaimed knowledge as to the origin of these supplies, on May
17, 1950, the Respondent stipulated in,a representation proceeding' that approxi-
mately 100 percent of the brass stock used originated outside the State of Michi-
gan. During this same period the Respondent's total sales of finished products in
1949 approximated $450,000 and in 1950 were slightly in excess of $639,000.
Michalik conceded that over 40 percent of these finished products was shipped
to wholesalers, suppliers, and manufacturers located outside the State of Michi-
gan." Upon these facts the undersigned concludes and finds that the Respondent
is engaged in commerce within the meaning of the Act. N. L. R. B. v. Vulcan
Forging Co., 188 F. 2d 927 (C. A. 6).
I. THE LABOR ORGANIZATIONS INVOLVED
International Uniou, United Automobile, Aircraft & Agricultural Implement
Workers of America (UAW-CIO), and its Local 408, are labor organizations
within the meaning of the Act, admitting to membership employees of the Re-
spondent.
s Throughout the transcript Michalik is also referred to as "Mr. Mitchell," the name by
which he is known to many of his employees.
J. J. Michalak, d/b/a Service Metal Industries, Case No. 7-RC-749.
10 The findings in this paragraph are based upon the testimony of Michalik and upon the
consent-election agreement in Case No. 7-RC-949, which appears as an exhibit in the
record of the instant case.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
The Union began its organizational campaign at the Respondent's plant in De-
cember 1949. On May 5, 1950,11 it filed a representation petition with the Board
in a proceeding entitled J. J. Michalak, d/b/a Service Metal Industries, Case No.
7-RC-949. On May 17, the parties executed an agreement for consent election.
Pursuant to this agreement an election was held at the Respondent' s plant on
June 2. Out of 67 ballots cast there were 35 votes for the Union, 21 against, and
11 challenges. Since no objections to the election were filed and the challenged
ballots were insufficient to affect the outcome on the basis of the valid votes
counted, on June 13 the Regional Director certified the Union as the exclusive
representative of all employees in the unit described in the agreement"
On June 8, the Respondent discharged Lydia DeDiana. Thereafter, during
the weeks subsequent to-the election, union' representatives met' tvith'Mi'chalik
on several occasions for the purpose of negotiating a contract. Early in August
the UAW called a strike which lasted for about 5 days, and on August 7 the
parties entered into a collective bargaining agreement whereby the Respondent
recognized the Union as the exclusive representative of all its employees except
"confidential office employees and supervisors." In September certain employees
in the tool and die room petitioned Michalik for a wage increase. Shortly there-
after, and before consulting with the Union, he granted a 15-cent per hour raise
to these employees. On December 4, the Union's shop committee met with
Michalik to discuss certain grievances. After a conference lasting but a short
while Michalik ended the meeting. That evening the Respondent notified all
employees in the production department that there would be no work until
further notice. On December 10, the employees went on strike and the Union
posted pickets about the plant area. Approximately 2 weeks later the strike
was settled.
B. The period up to and including the election
In the weeks before the election the Respondent manifested a determined op-
position to the Union. Michalik's son, Joseph J. Michalik, Jr.," among the repre-
sentatives of management," was the most vocal in predicting a difficult future for
the union adherents. About a month before the election he told Antonietta Voss,
an employee in the production room, that the Union was "no good," that both she
and her sister (who also worked at the plant) wexe both for the Union and that
his father was planning to discharge them" During the same period in a con-
11 Unless otherwise noted all events related herein occurred in 1950.
127, e. "All employees of the Company , excluding office and clerical employees , guards,
salesmen , engineers , professional employees , and supervisors as defined in the Act."
32 Hereinafter called Michalik, Jr.
14 As a full-time employee , Michalik , Jr., was nominally assigned to the tool and die
room and held no supervisory position . From the record, however , it is plain that he
enjoyed great latitude in his activities at the plant and that the rank-and-file employees
had occasion to consider him "a spokesman . . . for his father ," as Elroy Merchant,
superintendent of the production department at the time , once described him. The
Respondent made no effort to dispel this impression from the minds of his enrpldyees or to
repudiate his sort's activities . Indeed, by his own coercive conduct and statements so
similar to those of Michalik, Jr., the employees had every reason to believe that the father
sanctioned his actions . By the Respondent 's failure to repudiate the conduct of Michalik;
Jr., related herein , and by accepting the benefits of his activities , the undersigned finds
that the Respondent acquiesced in, ratified, and approved of the conduct of Michalik, Jr.,
and in so doing , became responsible for his activities . N. L. it. B . v. Taylor-Colquitt Com-
pany, et at., 140 F. 2d 92, 93 (C. A. 4).
12 Based on the credited , undenied testimony of Antonietta Voss. Michalik , Jr., did not
testify.
SERVICE METAL INDUSTRIES 19
versation with June Brown, another employee, he stated that although he intended
to give the employees a raise, in the event the Union won the election wage ad-
justments would have to be made according to its demands. On another occasion
shortly before the election he told DeDiana and several other employees during
a noonday lunch period that "any of the girls who joined the Union would be
fired." 'B About a month before the election Foreman John Hosta questioned
Donalda Vieaux, an employee, about her union interests and sought to elicit in-
formation from her as to those employees in the shop who were active in the
UAW organizational drive."
Just before the election, the Respondent had Ruth Young, one of his office per-
sonnel, read a speech to all the employees on both the morning and afternoon
shifts at an assembly in the plant.18 After observing that current difficulties made
it financially impossible to grant the many benefits which the Union claimed the
employees should have, this statement concluded with the suggestion that a com-
mittee of the employees meet with Michalik to discuss their problems and that
in this fashion "everyone could be satisfied without bringing the Union into the
picture. . . At present we can make day to day changes necessary. This helps
us all and keeps you getting your pay for a full week." 1°
On the night of the election, Michalik expressed himself with extreme bitter-
ness when it became clear that the UAW had won. To those present he announced
that although the Union had won the election it "didn't win much" because he
expected to "close the plant down [and] put a `for sale' sign out in front."
Michalik then informed Maggio it would be useless to ask that he sign "any kind
of a paper," that he would only tear it up even if this meant going to jail and that
he would rather go out of business than have a union in his plant20
C. The discriminatory discharge and layoffs
1. The discharge of DeDiana
Lydia DeDiana began work for the Respondent in 1948 as a punch press oper-
ator. While on duty at the plant during the fall of that year she sustained a
severe injury to her left hand and was incapacitated for 9 weeks. She received
compensation for the time lost and returned to work in December. She had still
not recovered from the injury, however, and the Respondent's insurance carrier
made arrangements for her to receive added medical attention to effect recovery.
This continued for many months, under various physicians, the last of whom
was Dr. Charles H. Clifford. From a date in August 1949, until her discharge,
DeDiana received physiotherapy treatments under Clifford's direction three
times a week. In doing so, she customarily left the plant in the middle of the
afternoon and the Respondent paid her for the time thus spent. On May 5, 1950,
Plant Foreman Joseph J. French informed her that thereafter she would not
1° Based on DeDiana's credited, undenied testimony.
17 Based on Vieaux's credited, undenied testimony.
18 Michalik testified that the contents of this statement had been suggested by Attorney
Larry R. Davidow. Michalik conceded that he had "probably" read it before Young met
with the employees. In the light of these circumstances it is plain that Young was
acting as an agent of the Respondent in her delivery of this message to the employees.
18 The quotation is from the speech, a copy of which appears in the record as an exhibit.
20 The foregoing is based on the credited, undenied testimony of Pauline Cherry, Philip
Maggio, and Paul Naso as well as the testimony of Michalik himself. Michalik conceded
that on this occasion he told the union representatives, "I'd close the place up before I
submitted." He further testified that in this conversation he told Maggio that he had
experienced a lot of trouble with unions and anticipated more because of his feeling
"that I don't think a tiger changes its stripes."
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'be paid for any shift time lost while receiving further medical treatment. The
Respondent, however;- permitted-her to continue the visits to the doctor's office
during working hours, three afternoons a week, in accordance with her practice
prior to that date 21 On June 8, 1950, the Respondent discharged her.
It is clear that DeDiana played an early and prominent role in the organiza-
tional campaign and that the Respondent was well aware of her activities in
this connection. In December 1949, she contacted representatives of the UAW
and suggested that they endeavor to organize the Respondent's plant. On Jan-
uary 12, 1950, she signed an application for membership in the UAW. There-
after, she took part in the Union's campaign and persuaded several of her co-
workers to sign application cards. On at least two occasions early in the spring
of 1950 Michalik told Elroy Merchant, then superintendent of the production
department, that he suspected DeDiana of being a union organizer and asked
that Merchant follow her activities closely ?2 Less than 5 weeks before the, elec-
tion, in a conversation with John Hosta, one of the foremen, Michalik referred
to DeDiana as the "main instigator" of the union campaign .2' At the election
on June 2, another employee, Pauline Cherry, served as the union observer.
This fact, by itself, provoked Michalik, Jr., to ask Cherry why DeDiana had not
filled the position, explaining as he did so that he was under the impression that
DeDiana was the "instigator" of the Union.24 On June 5, Paul Naso, president
of UAW Local 408, appointed DeDiana chief steward-on the day shift and gave
her a badge denoting that position which she wore while at the plant until her
discharge. In a subsequent meeting with the Respondent that same day, Naso
told Michalik of DeDiana's appointment, along with certain other employees, on
a temporary union committee to function in the plant until the employees had
an opportunity to elect members. Michalik took down the names of the em-
ployees which Naso had given him and indicated that he would recognize them
as a committee. During the course of the conversation, however, he expressed
bitter resentment over the arrival of the UAW and stated, "I know all about the
Union . . . they are trying to put me out of business." 25
On the morning of June.6, French told DeDiana that any further visits
to her doctor would have to be made after working -hours. Later that same
day, DeDiana asked Michalik if it was true, as French had told her, that
she could not leave the plant for medical treatment until the end of her shift.
Michalik answered in the affirmative. She then told him that it would prob-
ably be impossible to change her appointment for the following afternoon
because in her experience it was difficult to arrange for any treatment at
21 DeDiana paid for none of the medical assistance which she received in connection with
her injury . Insofar as the record indicates , that expense was borne entirely by the insur-
ance company which provided coverage for the Respondent under the Michigan Workmen's
Compensation Law.
22 This finding is based on the credited testimony of Merchant who impressed the under-
signed as an honest and convincing witness.
22 This finding is based on the credited testimony of Hosta.
24 This finding is based on the credited , undenied testimony of Cherry.
21 The findings as to the conversation at this meeting are based on the credited , undenied
testimony of Maso. Michalik's general denials that he knew of DeDiana's union member-
ship or that he ever told anyone before the election that she was active in the UAW were
not convincing . His testimony in this connection was both contradictory and evasive.
At one point he denied ever knowing that DeDiana was active in the Union. Later, he
testified that in December lie saw her picketing his plant and assumed at the time that she
was a member . Still later, Michalik stated that in September , at a hearing before the
Michigan Unemployment Compensation Commission, he learned that DeDiana was a union
member. When confronted with his testimony at this hearing he conceded that before the
compensation commission he had testified that after the election and before her discharge
he had seen Diana wearing her chief steward's badge
SERVICE METAL INDUSTRIES 21
Clifford's office after 4 p. in. Michalik replied that in that event she could
keep the scheduled appointment but that all subsequent appointments would
have to be made so as to eliminate the necessity of leaving the plant during
working hours28 Early on the afternoon of June 7, DeDiana told French
that she would have to leave at 3 p. in. to keep an appointment at Dr. Clifford's
office. French made no reply." Shortly thereafter, DeDiana punched out
and kept her scheduled appointment.
When DeDiana reported for work ,the following morning French told her
that she had been discharged for leaving the plant without permission. De-
Diana protested that in talking with Michalik she had received his permis-
sion, but French stated that regardless of any such conversation she was
not going to work. DeDiana then left the plant. Later that morning, she
returned with Maggio, as representative of the UAW, to protest her dis-
charge at a meeting with Michalik and French, but the latter refused to re-
consider the dismissal.
Contentions of the Parties and Concluding Findings
The General Counsel alleges that the sole motivation for DeDiana's dis-
charge was her prominence in union affairs. This is denied by the Respondent
ill his answer , wherein it is averred that DeDiana was dismissed for violating
an order not to leave the plant until the workday was over and for falsely
representing that to receive medical treatment it was necessary for her to
leavb the shop before the end of her shift.
The Respondent's contention that he discharged DeDiana because of an
unauthorized departure from the plant is not supported by the record. It is
clear, and the undersigned finds, that DeDiana's visit to Clifford's office was
not without permission, for Michalik told her on June 6 that she could keep
her appointment on the following afternoon, although he wanted her to
make other arrangements for subsequent visits. Moreover, on the afternoon
of June 7, French did not forbid DeDiana to leave the plant for the medical
visit. Indeed, it appears that when she notified him of her plans to leave
work early that afternoon he made no response and gave no indication of dis-
agreement. Since the plant owner had already granted her permission it was
certainly reasonable for her to infer from French's silence that he had no
objections.28 Consequently, the undersigned concludes and finds that there
is no substance to the Respondent's claim that DeDiana had been insubordinate
on June 7, and that French discharged her for that reason.
The Respondent's charge that DeDiana had misrepresented the need for leav-
ing the plant early was based, apparently, upon the fact that on June 6 she.had
told Michalik that it was necessary to be at the doctor's office no later than
4 p. in. According to DeDiana, she made this statement because Clifford's nurse
20 The findings as to this conversation are based on the credited testimony of DeDiana,
who impressed the undersigned as an honest and truthful witness. Her testimony in this
connection was corroborated by the credible testimony of Louise Anderson , an employee
who was in Michalik's office on another matter at the time of his conversation with
DeDiana. Michalik could not recall whether or not he gave her permission to keep the
appointment on June 7.
27 This finding is based on DeDiana 's credited testimony . At the hearing French at first
testified that on this occasion he insisted that DeDiana go to Clifford 's office after working
hours. Later, however, upon being confronted with testimony he had given before the
Michigan Unemployment Compensation Commission , French conceded that he had said
nothing in reply to DeDiana 's remark.
28 This is especially true in view of the fact that after May 5, whpn French told her
that she would not thereafter be paid for time spent on visits to Clifford ' s office, he had
never objected when she continued the treatments at the customary hour on her own time.
974176-52-vol. 96-3
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had told her that his office wanted no appointments after that hour. The Re-
spondent endeavored to prove that DeDiana could have gone later and French
testified that shortly before her discharge he told her that the plant bookkeeper
had found , in checking with the doctor , that it was possible for DeDiana to
receive treatments as late as 5:30 p. in. The Respondent did not call the
bookkeeper as a witness but Clifford , who was called by the Respondent, cor-
roborated DeDiana R9 According to Clifford , because the nurse who adminis-
tered the physiotherapy treatments left his office at 4:30 p. in, "except [in]
special circumstances , we like to have [the patients ] in at four o'clock." He
further testified that at this time approximately 99 percent of his physiotherapy
patients came before that hour and only an occasional case came any later in
the day. In the light of this testimony it is apparent that there was no mis-
representation on DeDiana 's part in her conversation with Michalik.
The Respondent also sought to establish that at the time of her discharge
DeDiana was no longer in need of medical assistance . Thus, French testified
that at some time prior to her discharge the plant bookkeeper had found, upon
inquiring at Clifford 's office, that further treatments in her case were unneces-
sary. While it is clear that by this time DeDiana had experienced marked
improvement , her recovery was still incomplete , as Clifford 's testimony amply
proves. According to the doctor, early in May he told DeDiana that although
the use of her injured hand was more important than continued physiotherapy
he suggested that she could continue to be treated at his office . Clifford ex-
plained that he made this suggestion not only because DeDiana was still receiv-
ing some benefit from the treatments, but because she still had some residual
limitation of function in her fingers . He testified that with such patients it was
his practice either to continue treatment or to offer treatment as long as possi-
ble in order to limit the liability of the insurance company by which he was
retained.
Finally, the Respondent had urged a further ground for DeDiana's discharge
in a notice to its employees on the matter and in proceedings before the Michigan
Unemployment Compensation Commission.30 This alleged added reason was
that DeDiana had sought to obtain a false certificate from Clifford concerning
her health in order to procure a leave of absence from the plant . No testimony
was offered at the hearing before the undersigned that would substantiate this
allegation . Clifford testified that in May , DeDiana had asked for a note on her
general health to substantiate a request for a leave of absence and that he had
told her at that time that since he was treating her for a specific injury such
a statement could only be supplied by her family doctor. He further testified
that there was nothing unusual about DeDiana's request, that he considered it
routine and that there was "nothing false about it." 31
Upon consideration of the foregoing facts, particularly Michalik 's pronounced
hostility to the UAW, the Respondent's knowledge of Delliiana 's prominence in
the union movement , the abruptness of her discharge and the unconvincing
reasons advanced to explain it, the undersigned concludes and finds that the
real reason for her summary dismissal was DeDiana 's union activities.
2. The conference on December 4 and the ensuing shutdown
On the afternoon of December 4, the union shop committee met with Michalik
to discuss several grievances filed during the preceding weeks. After the parties
° Dr. Clifford impressed the undersigned as a completely frank and credible witness.
° The case before the State agency was still undecided at the time of the hearing in
the instant proceeding.21
The quotation is from Clifford 's testimony.
SERVICE METAL INDUSTRIES 23
had given brief consideration to one grievance the shop committee asked that
Michalik turn to another which involved the complaint of an employee whom he
had transferred from the afternoon to the morning shift. The committee mem-
bers contended that in so doing Michalik had disregarded the seniority provi-
sions of their contract and asked that he reconsider the matter. This sugges-
tion greatly ired Michalik who told the committee that he did not need their
help in operating his plant and that rather than accept their suggestions he
would close the shop and "put an auction sign out in front." Upon making
this remark, he turned to his daughter, Frances Michalik, a member of his office,
staff , and ordered her to "call Western Union and send . . . everybody a tele-
gram stating there would be no work until further notice." Maggio then asked{
Michalik whether he intended to close the tool and die room and was told that,
it "was none of his business, that they weren't in the Union." When Maggie
endeavored to return the discussion to the grievance in question, Michalik re-
fused with the statement, "Absolutely, no. You have heard my decision." With
this, Michalik terminated the meeting and the committee departed ' Michalik
then notifie( his employees, with the exception of those in the tool and die room,
that effective December 5 there would be no work for employees in the production
department until further notice.'
On December 9 the Union voted to initiate a strike at the Respondent's plant
on the following morning. Pickets were stationed at the plant the next day and
the strike continued until about December 22. On December 12 a representative
of the Michigan State Mediation Service brought the parties together at a meeting:
in which he made an unsuccessful attempt to settle the differences out of which
the strike arose. At the outset of the meeting Attorney Larry R. Davidow told
the union committee that the Respondent's representatives would not discuss any
grievances unless the picket line was removed that evening. Kasperowicz, one
of the members of the union committee present, credibly testified that Davidow
stated that "If we didn't remove our picket line by the 13th . . . the follow-
ing morning, . . . they would lock the plant and we could keep our griev-
ances as souvenirs of a plant we closed down." 3' When the Union rejected this'
demand and refused to remove the picket line the meeting ended. Later, other
meetings were held and shortly before Christmas the strike was settled. The
settlement agreement provided, among other things, for a 1k, cent raise for all
hourly classified employees and that the Respondent would not discipline any-
one as a result of the strike.
Contentions of the Parties and Concluding Findings
The General Counsel alleges that the shutdown of the production department
hourly classified employees and that the Respondent would not discipline any-
m The foregoing findings in this paragraph are based upon the credited , undenied testi-
mony of Pauline Cherry, Louise Anderson, Thaddius Kasperowicz, and Maggio. Michalik
conceded that "I did say that [I] would close the shop down by sending telegrams to
the people and laying them off." His testimony as to the manner in which the meeting;
was concluded did not differ materially from that of the union representatives present.
According to Michalik , he was excited at the time , and the meeting ended when "I just
told then, I just didn't want to discuss [the grievances ] anymore and they can go do as
they please ." Michalik could not recall whether he mentioned the tool and die room to,.
the committee.
31 Michalik conceded that as soon as the meeting ended he dictated such a notice to-the
production employees on the afternoon shift. Later in the day he dispatched a similar
mes§age by telegram to the employees on the morning shift.
" Kasperowicz ' testimony was undenied and was corroborated by that of Cherry, Maggio„
and in part by the testimony of Michalik . Davidow did not testify at the hearing. Ih a:
deposition which he filed as an exhibit subsequent to the hearing , however, he, did'not men-
tion this testimony of the above -named witnesses or question its accuracy.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further union activities by Michalik's employees.' In the Respondent' s answer, on
the other hand, it is averred that he resorted to the layoff at this time only to
effect a reorganization.
There is little evidence in the record to support the Respondent's contention
that the production department at the plant was closed for several days on and
after December 5, solely to permit a reorganization of the department that would
improve its efficiency. Michalik testified that at the meeting on December 4,
because he was angered by "too much interference" and "too much grievances,"
he told the committee he was laying everyone off "until I have a chance to think
about it" and "to rearrange and schedule my production different." Michalik's
testimony as to just what was done to reschedule and rearrange production dur-
ing the period immediately after December 4 was extremely vague. He testified
at one point that on December 5 and 6 he rearranged machines in the plant and
spent some time "thinking about" 86 how he could more efficiently utilize his
equipment and personnel. Later, however, he conceded that apart from possibly
having disconnected the power from some of the equipment he could not recall
having moved any specific machine in the plant during the period from Decem-
ber 4 until the strike began. 88
It is clear that Michalik's closing of the plant was precipitate and that he
made the decision to do so without consulting any of his supervisorial or man-
agerial staff and without giving them any advance notice. Hosta, foreman on
the afternoon shift, credibly testified that he first learned of the decision about 5
p. in. on December 4, when Michalik handed him a layoff notice addressed to all
employees on Hosta's shift. Harvey C. Charbonneau, the plant industrial engi-
neer who handled the planning and scheduling of work as well as the purchase of
supplies and materials, credibly testified that he first learned of the layoff when
he came to his office on the morning of December 5 and found the plant deserted.
At the time of the shutdown there was no shortage of either orders or stock.
Charbonneau testified that the Respondent then had a 4- to 5-month backlog of
orders, and a 2- to 3-week supply of materials. Further, according to Charbon-
neau, when the plant reopened there was no change in the methods of production
or of scheduling production, .in the type of goods produced, or in the work per-
formed by the employees in the production department.
In view of (a) Michahk's threat to close his plant rather than accept the
suggestions of the union committee; (b) his order, given immediately there-
after, that the production employees be notified that there would be no work
until further notice ; (c) the fact that layoff notices were then dispatched to these
workers ; and (d) the insubstantial character of the explanation for the shut-
down offered by the Respondent at the hearing, the undersigned concludes and
finds that on and after December 5 the Respondent locked out and refused to
employ 17 of his production employees 87 for a period of several days because of
their membership in and activities on behalf of the Union. In doing so, the
Respondent discriminated with regard to their hire and tenure of employment
in order to discourage membership in a labor organization, in violation of Section
'8 (a) (3) of the Act, and thereby interfered with, restrained, and coerced his
8, The quotations in this paragraph are from Michalik's testimony.
36 Four of the production department employees, Louise Anderson, John Zielony, Walter
Zakrzewski , and Chester Hardy were recalled on December 7 and worked until December 9.
The tool and die makers remained at work until the strike began. Michalik conceded that
throughout the period in question none of -these employees was used to move or rearrange
any of the machinery or equipment. The four production employees recalled were engaged
solely on the completion of a customer's order and the tool and die workers continued at
their regular jobs.
87 The names of these employees are listed in Appendix A.
SERVICE METAL INDUSTRIES 25
employees in the exercise of the rights guaranteed them by Section 7 of the Act,
in violation of Section 8 (a) (1) thereof. Cf. Scott Paper Box Company, 81
NLRB 535, 544; E. C. Brown Company, 81 NLRB 140, enforced, 184 F. 2d 820
(C. A. 2) ; N. L. R. B. v. Crow Bar Coal Co., 141 F. 2d 317, 318 (C. A. 10).
D. The refusal to bargain
1. The appropriate unit
The complaint alleged that all employees of the Respondent, excluding office
and clerical employees, guards, salesmen, engineers, professional employees, and
supervisors, constitute a unit appropriate for purposes of collective bargaining
within the meaning of Section 9 (a) and (b) of the Act. This is denied in the
answer wherein it is averred that the plant is divided into a production depart-
ment and a tool and die room and that each should be a separate unit.
The Respondent's attack on the unit alleged by the General Counsel to be
appropriate is untimely and without substance. In May 1950, the Respondent
stipulated in an agreement for consent election that such a unit would be appro-
priate.e8 Subsequent to the election of June 2, and after the Union had been
certified by the Regional Director as the exclusive representative of all the
employees in the unit previously agreed upon by the parties as appropriate, the
Respondent entered into a contract with the Union covering all of his employees,
including those in the tool and die room and excepting only "confidential office
employees and supervisors." At the time of the election there were approxi-
mately 68 employees in the plant, about 15 engaged in the tool and die room and
the rest in the production department.," Michalik testified that the work of the
the room had no connection with the production department but he conceded that
the work of the tool makers was interrelated with activities in the rest of the
plant. It is apparent from the record, however, that the interests of the em-
ployees in the tool and die room lay with those of the production employees and
that on this ground alone the tool and die-making employees could properly have
been included in the over-all unit. Cf. Duro Metal Products Company, 73 NLRB
368; The Chase-Shawmutt Company, 71 NLRB 610; John Deere Harvester
Works, 44 NLRB 335, 340. In this case, however, the Respondent not only agreed
in May that the tool and die-making employees were properly a part of a plant-
wide unit, over a period of months he bargained with the Union on that basis and
in August signed a contract in which they were among the employees covered.
Insofar as the record indicates, it was not until the hearing in this case that the
Respondent raised any question as to the appropriateness of the unit involved.
In the light of the foregoing there is plainly no merit to the Respondent's belated
attack on the appropriateness of the unit proposed by the General Counsel.
2. The Respondent's violations of Section 8 (a) (5) of the Act
The complaint alleged that the Respondent refused to recognize the Union
as the exclusive representative of his employees in the tool and die room.
The record supports this allegation. Michalik conceded that on about Sep-
tember 22, the tool and die workers petitioned him for a raise, that shortly
thereafter he granted these employees a 15-cent per hour increase, and that this
88 According to the credited, undenied testimony of Maggio, it was only at the insistence
of the Respondent that the tool and die employees were included in the unit agreed upon
at that time.
a" In December 1950 the Respondent sold its die-making equipment and discontinued its
tool and die room. The complaint did not allege, nor did the General Counsel urge, that
thin action constituted an unfair labor practice in connection with the lockout discussed
abe we.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.action was taken without consulting any representative of the Union. More-
over, Michalik's concession to the petitioning employees was made after the
Union had sent the Respondent a 60-day notice that it desired to reopen the
contract and bargain for a plant-wide wage increase applicable to all em-
ployees in the unit. The Respondent's unilateral action here was, as the General
Counsel contends, a violation of Section 8 (a) (5) of the Act. United States
!Gypsum Company, 94 NLRB 112; Dixie Culvert Mfg. Co., 87 NLRB 554, 555;
1V. L. R. B. v. Crompton-Highland Mills, 337 U. S. 217. Later, on December 46
when Michalik refused even to discuss with the union committee the question
of whether he would lay off the tool and die employees on the ground that they
-were not union members, he manifested a continuing determination not to
fulfill his statutory duty to bargain collectively with the Union as the exclusive
representative of all employees in the appropriate unit and thus violated Section
S (a) (5). It was likewise a violation of the same section of the Act when
on December 12 the Respondent, through his counsel, demanded the immediate
removal of the UAW picket line at the plant as a condition precedent to any
-further bargaining with the Union. Since by their picketing the employees
were engaged in protected concerted activity the Respondent could not require
them to forfeit their right to do so before the Respondent, in turn, fulfilled
his statutory obligation to meet with the Union. Cf. N. L. R. B. v. Dalton
Telephone Company, 187 F. 2d 811 (C. A. 5). Finally, by his threats to close
the plant made on June 2 and December 4, his declaration to the union repre-
sentatives on the latter date that he alone, without any further consultation
with the Union, would determine the working conditions in the plant, and his
implementation of this statement by shutting down the production department,
Michalik evinced a determined refusal to meet his obligation to bargain with
the majority representative of his employees and by such conduct violated See-
tion 8 (a) (5) of the Act.
E. Conclusions as to interference, restraint, and coercion
The undersigned has found that prior to the election, Joseph J. Michalik, Jr.,
while acting as an agent of the Respondent, on one occasion informed an em-
ployee that she was known as a union adherent and that her discharge was
being considered, on a second occasion told another employee that although
raises for the plant personnel were in the offing, if the Union won the election
wage adjustments would have to be made in accord with its demands, and
on a third occasion told several of the production workers that those who joined
the Union would be discharged. During the same period Foreman Hosta inter-
rogated Donalda Vieaux as to her union sympathies and sought to learn from
her the names of those employees active in the organizational movement. It
is well settled that Such conduct by the Respondent or his agents was violative
of Section 8 (a) (1) of the Act. Salant & Salant, Incoorporated, 92 NLRB 343;
Standard-Coosa-Thatcher Company, 85 NLRB 1358; Meier & Frank Company,
Inc., 89 NLRB 1016. Similarly, Michalik, Sr., violated the same section of the
Act with his statements on June 2 and December 4 to the effect that he would
close the plant before he would either sign a collective bargaining agreement or
bargain with the Union over grievances. Salant & Salant, Incorporated, ibid.
Further, in the light of the threats to discharge union adherents and to close
the plant if the Union won, it was likewise a violation of Section 8 (a) (1)
for the Respondent, through his agent, Ruth Young, to tell his employees on
the eve of the representation election that rather than vote for the Union it
would be more advantageous in the settlement of their grievances to form a
committee of four or five employees that could meet with management. J. J.
SERVICE METAL INDUSTRIES 27
'Newberry Company, 88 NLRB 947, 956. Cf. Queen City Valve Co., 93 NLRB
1576. Finally, the Respondent interfered with, restrained, and coerced his em-
ployees in the exercise of their rights guaranteed in Section 7 of the Act, when
-Attorney Davidow told the union committee on December 12 that the Respondent
'would close down his business unless the UAW immediately discontinued its
-picketing at the plant. Cf. Old Town Shoe Company, 91 NLRB 240.
Contrary to the contention urged in the Respondent's brief, such conduct as
that related above is not protected by Section 8 (c) of the Act. The implied
threat of reprisal for adherence to the Union so manifest in the remarks of
`Michalik, his son, and his counsel, referred to above, are plainly beyond the
'immunization of "views, argument, or opinion" intended by Section 8 (c).
-Salant & Salant, Incorporated, ibid.; Andrews Company, 87 NLRB 379. Nor can
the interrogation of an employee by Foreman Hosta, as related above, be dis-
missed as privileged conduct. As the Board stated in Standard-Coosa-Thatcher
Company, ibid ., "Interrogation cannot be considered an expression of views,
arguments, or opinion, within the meaning of that provision [Section 8 (c) ].
. . . Moreover, the purpose of that section is to permit an employer to express
_his views, not to license him to extract those of his employees."
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 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 the Respondent has engaged in the unfair labor practices
set forth above, the Trial Examiner will recommend that the Respondent cease
and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Thus, it will be recommended that the Respondent offer Lydia DeDiana im-
mediate and full reinstatement to her former or substantially equivalent posi-
tion90 and make her whole for any loss of pay she may have suffered by reason
of the Respondent 's discrimination against her by payment to her of a sum of
money equal to that which she normally would have earned as wages from the
date of her discharge to the date of the Respondent's offer of reinstatement, less
her net earnings during said period." Further , it will be recommended that
the Respondent remedy its discrimination against the employees listed in Ap-
pendix A hereof by making them whole for any loss of pay that they may have
suffered by reason of the Respondent 's discrimination against them from De-
cember 5 to and including December 9, 1950.'
" The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827.
41 Crossett Lumber Company, 8 NLRB 440. Her loss of pay shall be computed on the
basis of each separate calendar quarter or portion thereof during the period from the
Respondent ' s discriminatory action to the date of a proper offer of reinstatement. The
quarterly periods 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 she would nor-
mally have earned for each such quarter or portion thereof , her net earnings , if any, in any
other employment during that period. Earnings in one particular quarter shall have no
effect upon the back-pay liability for any other quarter. F. W. Woolworth Company, 90
NLRB 289.
42 Since the employees went out on strike on December 10, and upon conclusion of the
strike were recalled as work became available, it will not be recommended that they receive
any back pay for the period subsequent to December 9.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It will also be recommended that the Respondent, upon reasonable request,
make available to the Board and its agents all payroll and other records perti-
nent to an analysis of the amount due as back pay.
Since the violations of the Act which the Respondent committed are per-
suasively related to other unfair labor practices proscribed by the Act, and the
danger of their commission in the future is to be anticipated from the Re-
spondent's conduct in the past, 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 guaranties of Section 7, to prevent
a 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 the Respondent cease and desist from in-
fringing 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, the undersigned makes the following :
CONCLUSIONS OF LAw
1. International Union, United Automobile, Aircraft & Agricultural Im-
plement Workers of America (UAW-CIO), and its Local 408, are labor organi-
zations within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing his 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.
3. By discriminating in regard to the hire and tenure of employment of Lydia
DeDiana and of those employees listed in Appendix A hereof, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) and (1) of the Act.
4. All employees of the Respondent, excluding office and clerical employees,
guards, salesmen, engineers, professional employees, and supervisors as defined
in the Act, constitute, and at all times material herein have constituted, a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
5. International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America (UAW-CIO), was, on June 2, 1950, and has been, at all
times material since, the exclusive representative of all the employees in the
unit above described for the purposes of collective bargaining within the meaning
of Section 9 (a) of the Act.
6. By stating on June 2, 1950, and thereafter, that he would close his plant
'before he would sign a contract with the aforesaid Union, by refusing to recognize
the Union as the exclusive representative of his tool and die room employees,
by unilaterally granting wage increases to his employees, and by stating that he
would not bargain with the Union until it removed a picket line before his plant,
the Respondent' has refused to bargain collectively with the said Union in viola-
tion of Section 8 (a) (5) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]