Stationers Corp.

National Labor Relations Board - Board Decisions

Sep 17, 1951

96 N.L.R.B. 196 (N.L.R.B. 1951)

196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to labor relations matters. We agree with the Employer that the
clerk-typist is a confidential employee, and, as such, will exclude her
from the unit.'
Route captains: The Petitioner would exclude, and the Employer
include, route captains. As indicated above, route captains are junior
high school students. They are regular part-time employees earning
from $2.50 to $3 per week. They work from 1/2 to 1 hour per day.
They assist district managers in making deliveries of papers to route
carriers. They perform routine checking work. In an emergency,
they may deliver or assist a substitute carrier in making delivery on
a route. They do not share in paid vacations afforded full-time em-
ployees. They have access to the Employer's hospitalization insurance
and credit union program. We shall include route captains in the
unit,-' and as regular part-time employees, we shall permit them
to vote in the election hereinafter directed.
Mae7 room foreman: The Employer would exclude the mail room
foreman as a supervisor. The record discloses that the mail room
foreman has authority to hire and discharge the mail room employees
who work under his direction. We shall exclude the mail room fore-
man as a supervisor from the unit.
We find that all employees in the circulation department at the
Employer's newspaper publishing plant at St. Petersburg, Florida,
including route carriers who are not independent contractors, route
captains, city, suburban, and county district managers, and street
sales managers; but excluding route carriers and street vendors, who
are independent contractors, solicitor agents, guards, confidential
and professional employees, the mail room foreman, and other super-
visors, constitute a unit appropriate 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.]
4 Minneapolis -Moline Company , 85 NLRB 597.
S H. B. Church Truck Servwe Company, 95 NLRB No. 192. Evening News Publishing
Company, 93 NLRB 1355.
STATIONERS CORPORATION and WAREHOUSE, PROCESSING & DISTRIBU-
TION WORKERS UNION LOCAL 26, INTERNATIONAL LONGSHOREMEN'S
AND WAREHOUSEMEN'S UNION . Cases Nos. 21-CA-818 and 21-
CA-859. September 17, 1951
Decision and Order
On February 14, 1951, Trial Examiner J. J. Fitzpatrick issued his
Intermediate Report in the above-entitled proceeding, finding that
96 NLRB No. -24
11
STATIONERS CORPORATION 197
the Respondent 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. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief. The Respondent also
requested oral argument. The request is hereby denied because the
record and exceptions and brief, in our opinion, adequately present
the issues and the position of the parties.
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 Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the modifications set forth below.3
1. We agree with the Trial Examiner's conclusion that McCormick,
Prulitsky, Corley, Wagner, Phillip, Allen, and Young were discharged
on June 19, 1950, because of union activity. We also agree that Carl
Raggio was discriminatorily discharged. However, as Raggio was
discharged under somewhat different circumstances than the seven
other employees, certain aspects of his discharge will be discussed
separately in paragraph numbered 2.
Like the Trial Examiner, we do not credit the Respondent's con-
tention that the discharges were necessary because the payroll was
"too high" for the slack period which normally would begin in late
May or June and extend to about July 15. As more fully appears in
the Intermediate Report, 6 new employees were hired within a short
period after these employees were discharged, and many more were
i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Houston and Reynolds].
2 The Respondent alleged, by way of affirmative defense, that the charging Union was
not in compliance with Section 9 (h) of the Act because of the alleged falsity of the non-
Communist affidavits filed by the president of the Longshoremen 's and Warehousemen's
Union with which the charging Union is affiliated , and that the Board was therefore with-
out jurisdiction in this proceeding . In support of this contention , it points to the fact that
this union officer, Bridges, was convicted of perjury and conspiring to defraud the United
States in connection with the falsification of his application for citizenship papers U. S.
v. Bridges , 90 F. Supp. 973 ( N. D. Cal 1950).
We have heretofore refused to go behind the affidavits filed under the provisions of 9 (h)
stating that neither the statute itself nor its legislative history authorizes the Board to
investigate the authenticity or truth of the affidavits which have been filed . As we have
previously stated, in Alpert & Alpert , 92 NLRB 806 , "we do not believe . . . the conviction
of Bridges of perjury and of conspiracy to defraud . . . calls for a different conclusion. In
this situation , as in others already considered by the Board , `persons desiring to establish
falsification or fraud have recourse to the Department of Justice for a criminal prosecution
under Section 35 (a) of the Criminal Code.' "
Accordingly the Trial Examiner acted correctly in striking the affirmative defense and
rejecting Respondent 's offer to prove noncompliance.
3 The Trial Examiner , in setting forth the dates on which the several dischargees entered
the Respondent ' s employ , erroneously gi%es the date when Allen was employed as March
3, 1950. The record shows the date to have been May 29, 1950
974176-52-vol 96-14
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
added during July and August 4 Moreover, we regard it as more
than mere coincidence that, although the number of union adherents
among the warehouse employees was not great, as evidenced by the
fact that no more than 23 of the 90 employees in the warehouse had
signed membership application cards before the day of the discharges,
all those selected for discharge were among the signers.5
We find, as did the Trial Examiner, that the Respondent was aware
of the union activity of its employees. In so finding, however, we
do not adopt the Trial Examiner's conclusion that Superintendent
Wright and Foreman Anderson must have known of such union ac-
tivity because salesman Machado, despite the brevity of his daily con-
-tacts with the warehouse, was aware of it. The record does not es-
tablish that Machado was in any sense a representative of manage-
ment. Nor, as hereinafter set forth in the discussion of Raggio's
discharge, does the record clearly disclose that Machado was himself
aware of the extent of union activity in the warehouse before June
20, when the union adherents first wore union buttons at work. We
believe, however, that the record amply demonstrates that the Re-
spondent actively interested itself in, and early became aware of,
all union activities of its warehouse employees. Thus, it was the
Respondent's practice to inquire orally, as well as through a question
on its employment application form, as to the union membership
of each new employee. When Wagner, one of those discharged on
June 19, was first employed, Superintendent Wright, not content with
Wagner's statement that he was not a union member, sought out
Corley to ask him if he knew of any union inclinations on Wagner's
.,.,part. When Prulitsky, another of those discharged on June 19, was
employed, Wright asked him how he felt about unions, and upon re-
ceiving Prulitsky's reply that he was not in favor of them, Wright
commented that Prulitsky's name sounded "communistic" like he
might have "something to do with a union."
We regard as particularly significant the fact that Wagner, Corley,
and to a lesser extent, McCormick, had been identified with an abortive
attempt at union organization in the spring of 1949. At that time
a group of warehouse employees headed by Ben Masten and includ-
ing Dave Norriss, Dave Hammond, Wagner, and Corley, secured union
literature and application cards from a local of the Teamsters Union
and made preliminary arrangements for an organizing meeting.6 An
4 As we have found that the discharges did not result from an economic reduction in
force, we further find, like the Trial Examiner, that it is unnecessary to determine whether
the quality of their work was such that they would have been selected for elimination in a
reduction motivated by economic considerations . We note, moreover, that Superintendent
Wright informed McCormick that his work; and that of Corley, Wagner, and Prulitsky,
was "More than satisfactory "
See Sifers Candy Co., 171 F. 2d 63.
McCormick had no share in these preparations but he did sign an application card.
STATIONERS CORPORATION 199
evening had been selected for the meeting but, at some ' time during
that -working day, Masten, Ngrriss, and Hammond, together with two
or three employees who had not manifested interest in the Union,
were laid off 7 and the meeting scheduled for that night was abandoned.
A month or two after this layoff, Masten came to the warehouse where
Foreman Anderson observed him in conversation with Corley. An-
derson ordered Corley to get back to his work and, as soon as Masten
left, came over to Corley and said that Corley had "better stay away
from those boys" and that if the Respondent had known Corley
"had had anything to do with the Union he would have been dis-
charged with them." The Respondent's interest in its employees'
union activities was not limited to the organizing campaign of 1949,
however, as is shown by Foreman Anderson's questioning of stock
clerk Louis Graveson on the morning of June 19, 1950, as to the union
meeting scheduled for that evening.8
Upon all the facts disclosed by the record, including the small size
of the Respondent's warehouse, the Respondent's active interest in,
and efforts to keep itself informed about, its employees' union activity,
Foreman Anderson's questioning of employee Graveson on the morn-
ing of June 19 before the scheduled union meeting, and the patent
inadequacy of the reasons advanced by the Respondent for the layoff
of these seven employees on June 19, we find that the Respondent was
in fact aware of their union activities and discharged them for that
reason 9
2. Likewise, in finding that Raggio was discriminatorily discharged,
we do not rely, as did the Trial Examiner, upon salesman Machado's
conversations with Raggio as demonstrating the Respondent's aware-
ness of Raggio's adherence to the Union. As stated above, Machado
was not a supervisor, and it is not shown that in his contacts with
Raggio he was in any sense acting as a representative of management.
Moreover, even if Machado's knowledge could in any manner be im-
puted to the Respondent, we do not believe it to be clearly established
by the record that Machado in fact suspected Raggio's identification
with the Union before the time of his discharge.
7 Masten, Norriss , and Hammond were never recalled.
$ Like the Trial Examiner , we do not credit Anderson ' s explanation that he thought this
meeting, as to which he had overheard the truck drivers talking , was one concerning base-
ball or politics.
9 The Respondent excepts to the Trial Examiner ' s finding that the Respondent failed to
reinstate these employees and also Raggio whose case is hereinafter discussed , upon their
application for reinstatement in August 1950. In support thereof, it points to evidence
that in response to their application they were told by Superintendent Wright to come
back sometime after September 5, or after the schools opened in September , and the
Respondent might put them back to work. We find, as the Trial Examiner apparently
also found , that this was a noncommittal request for them to return at a later date, and
not an offer of reinstatement. Therefore , regardless of whether they complied with the
request, tpe Respondent did not thereby relieve itself of its obligation to offer them
reinstatement and thus in part to remedy its discrimination against them.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner found, and we agree, that Raggio was dis-
charged on June 21, when Superintendent Wright informed him that
he had been dropped from the payroll and must make a new applica-
tion in order to be reemployed. The Trial Examiner also found that
Machado talked to Raggio on two occasions, the dates of which he
fixed as June 14 and June 21, 1950. In the first of these conversations,
Raggio told Machado that he knew nothing about the union move-
ment in the warehouse. In the second conversation a week later,
Machado told Raggio, in effect, that because Raggio was suspected of
being allied with the Union, it would be useless for him to keep "the .
appointment he had made with Wright to apply for reemployment.
though he might apply later on. It is clear that this second conversa-
tion took place after June 2010 when the union members first wore
their union buttons at the warehouse, and thus it is not improbable
that Machado's suspicion of Raggio's union membership may have
dated from that event 11
As more fully set forth in the Intermediate Report, Raggio had
been ill for several weeks and was absent from the plant when the
seven employees were discharged on June 19. Two days later, when
he telephoned Superintendent Wright to inform him that he would
soon be ready to return to work, he was told that he had been dropped
from the payroll. Raggio was one of three who had attended the
initial meeting with the union representative on May 25, 1950, to plan
the methods of organizing the warehouse. The other two-McCor-
mick and Wagner-were among those discharged on June 19. Al-
though Raggio was ill at home and hence unable to attend the second
organizing meeting on June 5, he continued his activity by signing a
membership application brought to his home 3 days later. As in the
case of those discharged on June 19, and for the reasons set forth in 4
our discussion of their discharges, we are satisfied that the Respondent
was aware of Raggio's interest in, and advocacy of, the Union. Upon
all the record, and for the further reasons stated by the Trial Ex-
aminer, we find that Raggio was discharged because of his member-
ship and activity in the Union.
i
10 Although the testimony is conflicting as to the dates of the conversations between
Machado and Raggio, it is clear that they were about a week apart, and no witness placed
the second conversation at so early a date as June 20. Thus , Ragglo gave the two dates
as June 19 and June 26 , and Machado placed the second conversation as on June 27.
The dates found by the Trial Examiner apparently are derived from the testimony of
Superintendent Wright, who fixed the date of his conversation with Raggio, informing him
that he must apply for reinstatement , as June 21 . Although it is apparent that Raggio's
second conversation with Machado must have occurred within a short period after his
conversation with Wright , we are unable to accept the Trial Examiner 's finding as to the
date of this conversation with Machado , which conflicts with the testimony of both the
participants in it However , although we are inclined to believe this conversation occurred
either on June 26 or 27, we need not fix the exact date as it is immaterial to our disposition
of the issues herein.
11 Raggio 's transportation to and from work was provided by a car club, of which
employees Holler and Walton were the other two members . Like Raggio, they were union
adherents , and all three had discussed the Union extensively together . Machado was
aware of Raggio's association with these employees.
STATIONERS CORPORATION 201
The Remedy
The Board adopts the recommendations of the Trial Examiner
contained in the section of the Intermediate Report entitled "The
Remedy" with the following addition :
As the record indicates that at'least one of the discharged employees
has been inducted' iilto the Armed Forces of the United States, since
his discharge by the Respondent,"' and, accordingly, may not be avail-
able for immediate reinstatement, we shall, in order to restore him to
his position and thus effectuate the policy of the Act, order that the
Respondent, upon application by any one of the discharged employees
at present serving in the Armed Forces, made within 90 days of his
discharge from the Armed Forces, offer such discharged employee
reinstatement without prejudice to his seniority or other rights and
privileges. We shall also order the Respondent to notify any of the
employees ordered reinstated, who may be serving in the Armed Forces,
that they will be reinstated upon application within 90 days of their
discharge from the Armed Forces. Further, we shall order that the
Respondent make any such discharged employee whole for any loss of
earnings he may have suffered because of the Respondent's discrimi-
nation against him, by payment to him of a sum of money equal to the
amount he would normally have earned as wages during those periods
(1) between the date of his discharge by the Respondent and the date
of his induction, and (2) between a date 5 days after his timely appli-
cation for reinstatement and the date of offer of reinstatement by the
Respondent, less his net earnings during these periods. Our back-pay
order shall be taken to mean, with respect to any such discharged em-
ployee, that the Respondent shall immediately pay to him that portion
of his net back pay accumulated between the date of his discharge
and the date of his induction into the Armed Forces, without await-
ing a final determination of the full amount of his award 13
Order
Upon the entire record in the case and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the Respondent, Stationers Corporation, Los
Angeles, California, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Warehouse, Processing & Dis-
tribution Workers Union Local 26, International Longshoremen's and
Warehousemen's Union, or in any other labor organization of its em-
ployees, by discriminatorily discharging any of its employees, or in
It is stated in the record that Robert Philipp was inducted on the first day of the
hearing, although no mention of Philipp's induction is made in the Intermediate Report.
3a Federal Engineering Company, Inc, 60 NLRB 592, enforced in this respect 153 F.
2d 233 (C. A. 6.).
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any other manner discriminating in their hire or tenure of employment
or any condition 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 Warehouse, Processing & Dis-
tribution Workers Union Local 26, International Longshoremen's and
Warehousemen's Union, 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 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to John McCormick, Robert Philipp, Joseph Prulitsky,
John Corley, Jessie Wagner, Emmett Allen, Eugene Young, and Carl
W. Raggie, Jr., and each of them, immediate and full reinstatement
to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges, and make each of them-
whole for any loss of pay he may have suffered as a result of the
discrimination in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy." If any of the above-named
are at present serving in the Armed Forces of the United States, the'
Respondent shall offer such full reinstatement immediately upon
his application, made within 90 days of his discharge from the Armed
Forces, shall notify him of his right to reinstatement, and shall make
him whole for any loss of" pay he may have suffered as the result of
the discrimination in the manner set forth in the section of this De-
cision and Order entitled "The Remedy."
(b) Upon request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment
records, and all other records necessary to analyze and ascertain the
amounts of back pay under the terms of this Order.
(c) Post at its warehouse in Los Angeles, California, copies of the
notice attached hereto and marked "Appendix A.1114 Copies of said
notice, to be furnished by the Regional Director for the Twenty-first
Region, shall, after being duly signed by the Respondent or his repre-
sentative, be posted by the Respondent immediately upon receipt
thereof and maintained by it for sixty (60) consecutive days there-
14 In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted in the notice, before the words "A Decision and Order ," the words
"A Decree of the United States Court of Appeals Enforcing."
1
STATIONERS CORPORATION 203
after in conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the said Regional Director in writing within 10 days
from the date of this Order what steps the Respondent has taken to
comply herewith.
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 WARE-
HOUSE, PROCESSING & DIsiRiBUTION WORKERS UNION LOCAL 26,
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION,
or in any other labor organization, by discriminating in their hire
and tenure of employment or in any other manner discriminating
in regard to any other term or condition of employment.
WE WILL offer to John McCormick, Robert Philipp, Joseph
Prulitsky, John Corley, Jessie Wagner, Emmett Allen, Eugene
Young, and Carl W. Raggio, Jr., and each of them, immediate and
full reinstatement to his former or substantially equivalent posi-
tion without prejudice to any seniority or other rights and privi-
leges previously enjoyed, and make him whole for any loss of pay
suffered as a result of the discrimination against 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 WAREHOUSE,
PROCESSING & DISTRIBUTION WORKERS UNION LOCAL 26, INTER-
NATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, or any
other labor organization, to bargain collectively through represen-
tatives 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 activity except to
the extent that such right may be affected by the provisions of
Section 8 (a) (3) of the Act.
All our employees are free to become, remain, or refrain from becom-
ing members of the above-named union or any other labor organization
except to the extent that the right to refrain may be affected by a lawful
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement requiring membership in a labor organization as a condition
of employment.
STATIONERS CORPORATION,
Employer.
Dated -------------------- By -----------------------------
(Representative ) ( Title)
NoTE.-Any of the above-named employees at present serving in the Armed
Forces of the United States will be offered full reinstatement upon application
made within 90 days of his discharge from the Armed Forces.
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
As a result of charges duly filed by Warehouse, Processing & Distribution
Workers Union Local 26, International Longshoremen's and Warehousemen's
Union, herein called the Union, the General Counsel of the National Labor Rela-
tions Board, through the Regional Director for the Twenty-first Region (Los
Angeles, California), issued a consolidated complaint dated September 14, 1950.
against Stationers Corporation of Los Angeles, California, herein called the Re-
spondent. The complaint as amended at the hearing alleged that the Respond-
ent, by its discharge or layoff of seven named employees' on or about June 19
and its discharge of Carl W. Raggio, Jr., on or about June 26, 1950, and its
refusal thereafter to reinstate any of said employees, engaged in and is engaging
in unfair labor practices affecting commerce within the meaning of Section 8
(a) (3) and (1) and Section 2 (6) and (7) of the National Labor Relations Act
as amended (61 Stat. 136), herein called the Act. Copies of the complaint, the
charges, and notice of hearing were duly served upon the Respondent and the
Union. The Respondent's answer filed September 25, 1950, denied that the Re-
spondent was engaged in interstate commerce as alleged in the complaint and
also denied that it discharged, laid off, or refused to reinstate the eight indi-
viduals named for the reasons alleged in the complaint.
Pursuant to notice a hearing was held at Los Angeles, California, on December
12, 13, 14, and 15, 1950, before J. J. Fitzpatrick, the undersigned duly designated
Trial Examiner.' At the opening of the hearing the General Counsel's motion
was granted to strike from the answer a reference to compliance by the Union
with Section 9 (f), (g), and (h) of the Act. At the conclusion of the testimony,
at the request of the Respondent, it was given an opportunity to take depositions
relative to the employee status of Edward Machado. Since the close of the hear-
ing a deposition covering this subject has since been received and I have marked
the deposition Respondent's Exhibit 5 and it is received in evidence. The parties
waived oral argument at the close of the hearing but since then briefs have been
received from the Respondent.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
I John McCormick, Robert Philipp, Joseph Prulitsky, John Corley, Jessie Wagner,
Emmett Allen, and Eugene Young.
2 Associate Chief Trial Examiner William E. Spencer opened the hearing on December 12.
After the receipt of the formal papers.but before any evidence was taken I was designated
to conduct the hearing.
STATIONERS CORPORATION
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
205
Stationers Corporation is a California corporation with its principal office and
place of business located in Los Angeles County, California. It is engaged in
the business of buying, processing, and selling, at wholesale and retail, office and
school supplies. Its annual purchase of material, equipment, and supplies ex-
ceed $2,000,000 in value. Approximately 60 percent in value of such material,
equipment, and supplies is shipped directly to Respondent's warehouse in Los
Angeles, California, from points located outside the State of California. Re-
spondent's sales in the State of California are in excess of $2,000,000 in value.
Respondent annually ships goods valued at $25,000 or more directly to points out-
side the State of California. It furnishes goods necessary to the operation of
other employers engaging in interstate commerce, which goods are valued at more
than $50,000 annually. Some of these other employers are Standard Oil Com-
pany, Union Oil Company, Richfield Oil Company, North American Aviation,
Douglas Aircraft, Union Pacific Railway, Santa Fe Railway, and Bank of
America.
I find, contrary to the contention of the Respondent, that it is engaged in com-
merce within the meaning of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 ( 5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Background: Sequence of events
As above found the Respondent is engaged in the business of buying, processing,
and selling school supplies at wholesale and retail. It has an office, retail store,
printing plant, and a warehouse all located in or near Los Angeles, California.
We are concerned only with the warehouse which normally employs about 90
workers and is in charge of and supervised by Superintendent Clyde B. Wright,
assisted by a foreman, Robert Anderson. As the warehouse was used to some
extent as a training school for future store employees, or salesmen, Wright
favored young men just out of school. In fact it was the custom to temporarily
employ students in the warehouse during vacation periods.
The record discloses no labor organization functioning in the warehouse since
its purchase and occupancy about 1943. In the spring of 1949 a group of em-
ployees headed by Ben Masten, and including Dave Norris, Dave Hammond,
Jessie Wagner, and John W. Corley, became interested in organizing the ware-
house employees in the Teamsters Union. Union literature and application
cards were secured and arrangements made for an organizing meeting. How-
ever, the day of the evening on which the union meeting was to have been held
Masten, Norris, Hammond, and two or three other employees (but not Wagner
or Corley) were laid off, and the scheduled meeting was not held.
It was the Respondent's uniform practice to require all applicants for em-
ployment to fill out a form containing among other questions a query as to
whether the applicant was a union member. Before hiring a prospect, Super-
intendent Wright would orally ask the applicant the questions in the form. Be-
fore Wagner was employed on January 10, 1949, Wright asked him if he was
or ever had been a union member. Wagner answered in the negative. Before
a Stanislaus Implement and Hardware Co., Ltd., 91 NLRB 618: Hollow Tree Lumber
Company, 91 NLRB 635 ; Federal Dairy Company, 91 NLRB 1121.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hiring him, however, Wright questioned Corley about Wagner's union inclina-
tions, and received the same answer. Shortly after Masten's layoff in 1949 as
above described he came to the warehouse. Foreman Anderson saw Masten
talking to Corley and ordered the latter to return to his work. A few minutes
later Anderson told Corley that he had better stay away from "those boys" ; that
if the Respondent knew that he "had had anything to do with the union" he
"would have been discharged with them." When Joseph Prulitsky was hired
July 14, 1949, Wright asked him how he felt about unions, and when the latter
replied that he was not in favor of them Wright stated that Prulitsky's name
sounded "communistic," like he might have "something to do with a Union."
When Carl W. Raggio applied in the spring of 1950 Wright asked him if he had
anything to do with a union.
There was no further union activity in the warehouse until the spring of 1950
when John McCormick, who had signed a Teamsters' card the year before,
arranged a meeting at his home on the evening of May 25 with Louis R. Sher-
man, secretary-treasurer of the Union. In addition to Sherman and McCormick,
employees Wagner and Raggio attended this meeting . After general discussion
as to methods to be used in organizing the warehouse, arrangements were made
for a second meeting at the McCormick home the evening of June 5. At that time
approximately 10 of the employees, including McCormick, Wagner, Robert Philipp,
and Emmett Allen, met with Sherman. Application forms for membership in the
Union were distributed and. McCormick and Allen each signed one. Thereafter
employees were approached about joining, sometimes at the warehouse. Most
of the solicitation was by McCormick, although Philipp and Corley assisted to
some extent . By June 8 all 8 employees involved herein had signed application
cards'
On the evening of June 12 a third meeting was held at the home of employee
Tom Carroll. About 18 employees attended, including all the claimants herein
except Raggio. What discussion took place at this meeting does not appear in
the record, except that it, was decided to hold a further meeting the night
of June 19 at Carroll's home. At the June 19 meeting a letter was drafted to
the Respondent and signed by Sherman asking that the Union be recognized
as the bargaining agent for the warehouse employees. Those present also voted
to wear union buttons at work. By that time 26 employees had signed union
cards.
In the meantime, on the morning of June 19, Foreman Anderson having
heard some of the employees talking about a meeting for that evening, asked
stock clerk Louis Gravesen what he knew about the meeting, but received no
information.5 Late that afternoon all the claimants (except Raggio who had
not yet returned from his illness) were summarily discharged without any
previous warning, effective that night. When he handed out the individual
checks Foreman Anderson explained that he was acting under "orders" for a
reduction in force. Superintendent Wright told the protesting claimants that
their work had been satisfactory'
4 Wright testified that he "joked" with Prulitsky about the latter's name and asked him
if he was "Russian." He denied generally asking prospective employees whether they
were members of a union "other than reading that portion of the card to them "
s As will hereafter appear, Raggio became ill on May 27. He signed a union application
card on June 8, that employee Donald Walton brought to his home.
U Anderson testified that early in the morning of June 19 he had heard some of the drivers
talking about a meeting that night and he inquired about it from Gravesen because he
thought "maybe it was a baseball " or "political" meeting. This explanation is not
credited.
7 Wright testified that- in response to a question from McCormick as to their work he
stated, "your work was satisfactory such as it is." I credit the testimony of McCormick,
Corley, Wagner, and Prulitsky that Wright assured him that their work was "more than
satisfactory."
STATIONERS CORPORATION 207
The next day most of the employees who had signed applications appeared
at work wearing union buttons and the seven discharged employees, also wear-
ing buttons, presented to Wright the Union's written request for bargaining
recognition. Wright read the communication and stated that he would refer
the request to Mr. Miles, the Respondent's auditor, "who is the responsible
person for the lay-off, and be will probably give it an answer." The discussion
then turned again to the reason for the discharges. Prulitsky and McCormick
wanted to know why workers more recently employed than the seven involved
had not been discharged. Wright replied that the nature of the claimants'
work was "not involved" but that he had been ordered to cut the payroll.
Either Prulitsky or McCormick then stated that it had come to their attention
that new men had started to work in the warehouse that very morning. Wright
explained that the jobs of these new men had been "promised" as a "favor" to
certain salesmen of the Respondent. When asked if the union membership of
the seven employees had anything to do with the discharges Wright disclaimed
any knowledge that there was a union in the warehouse.
Corley, McCormick, Wagner, and Prulitsky were order clerks. Corley came
to work for the Respondent on December 11, 1947, McCormick on December 28,
1948, and as found above, Wagner came on January 10, and Prulitsky on July
14, 1949. The other three were originally employed as packers. Of these Philipp
reported to the Respondent on October 17 and Young on October 31, 1949.
Allen on March 3, 1950. All three continued as packers until their discharge
except Philipp, who was transferred to the receiving department in early 1950.
None of the seven has been reinstated although they all applied for reinstatement
in August 1950.
Raggio was employed on March 3, 1950, on the recommendation of Edward
Machado, a salesman for the Respondent and heretofore referred to. Ragglo
was placed in the warehouse as an order clerk so that he could learn the stock
and thus qualify later for a position in the Respondent's store as a comptometer
operator. As heretofore found he attended the original union organizational
meeting at McCormick's home on the evening of May 25. On May 27 while at
work he was taken seriously ill and sent home . Thereafter he was away from
work for several weeks, part of the time in a hospital. During his illness he
received hospital and sick benefits by virtue of the provisions of group insurance
policies between the Respondent and an insurance company, the premiums of
which were contributed to by both the Respondent and its employees.
On June 8, while ill at home, Ragglo was visited by his friend and coworker,
Donald Walton, and signed an application to join the Union. About June 14,
salesman Machado either telephoned to or called on Raggio at his home and
asked the latter if he knew anything about the Union's organizational efforts in
the warehouse. Raggio disclaimed any knowledge thereof or interest in the
Union. On or about June 21 Raggio telephoned to Wright and stated that he
would be ready to return to work in a few days. Wright advised Raggio that as
he had missed two of the semimonthly pay periods he had been dropped from
the payroll and that it would be necessary for him to reapply. Raggio made an
appointment to see Wright at the warehouse for this purpose.' Later in the day
on June 21 salesman Machado, an old friend of the Raggio family, telephoned
Carl and made an appointment to see him that evening at Machado's brother's
home. That evening Machado told Raggio that management felt that he was
"too close" to employees in the warehouse who were active in the union move-
ment and therefore they could not use him at that time, but that he should apply
9 Wright in his testimony was uncertain whether Ragglo had phoned him or called i
person on June 21.
208, DECISIONS-OF NATIONAL LABOR RELATIONS BOARD
for work later one About August 1 Raggio applied to Wright for a position but
was told that there was no opening for him. He has not since been reemployed.
B. Conclusions
. The Respondent made it a practice to require each applicant for employment
to fill out and sign a written application form containing, among other matters,
a question whether he was a "member of any labor organization." It was,
Superintendent Wright's custom to discuss the answers given to the questions
with each applicant before he was hired Wright, in these interviews, made it
clear that the Respondent did not favor a union in the warehouse. Thus, Wagner
when hired was asked if he had "ever been in a union" or had "belonged to a
union." He also questioned Corley as to Wagner's union inclinations. Wright
asked Prulitsky how he felt about unions and stated that Prulitsky's name
sounded "communistic," like he might have "something to do with a union."
Wright asked Raggio if he had anything to do with a union.
As heretofore found, in the spring of 1949 some efforts were made to organize
the warehouse employees in the Teamsters Union but the organizing attempt was,
dropped when employee Ben Masten, the leader therein, and several others were
laid off. Subsequent to the discharge of Masten, Foreman Anderson saw Corley
talking to Masten and told him that he also would have been released if the
Respondent thought he had been involved in the previous attempt to organize
the warehouse.
It thus appears and I find that prior to May 1950 the Respondent opposed the
organization of any union10 in the warehouse ,• and the employees ' were aware
of its attitude.
Contentions of the Respondent
The Respondent contends that (1) it had no knowledge of union activity in the
warehouse in 1950 until the employees on June 20 appeared at the plant wearing
union buttons, (2) the seven employees were terminated on June 19 because the
Respondent found it necessary for business ' reasons to reduce the payroll, and
(3) Raggio was released because of his extended illness.
As to the first contention : The Respondent's warehouse admittedly used about
90 workers on its 4 floors. Both Superintendent Wright and Foreman Anderson
were in daily contact with all these employees The 1950 campaign to secure
union members really got started on June 5 at the second meeting at McCormick's,
home when application cards were distributed. By June 19, 23 employees had
signed application cards. It is a fair inference that some of the warehouse
employees who were solicited did not sign applications because they were not
interested in a union . At least part of this solicitation took place prior to June
19 during business hours. For example, McCormick, who was one of the most
0 Machado , although admitting that he knew about the union activity in the warehouse,
that he was interested in seeing that Raggio retained his position, and that he felt that it
might affect his job chances if he was involved in the Union , denied that he ever talked to
Raggio on any but the one occasion which he fixed at about June 21 or a week thereafter.
As'Machado 's testimony in this respect ( as well as in other respects ) is contradictory and
contains statements and admissions inconsistent with the above denial , I do not credit his-
testimony that he only talked with Raggio about the Union on one occasion.
10 There was no allegation in the complaint that the inquiry about unions in the applica-
tion form, the questioning of prospective employees , or of Corley concerning Wagner,
constituted unfair labor practices . Nor could these allegations have been properly included
in the complaint in view of the limitation in Section 10 (b) of the Act. All the above
evidence was received as background only and no unfair labor practices are based thereon.
However , the evidence is and will be considered as showing the Respondent ' s attitude
towards a union in the warehouse.
STATIONERS CORPORATION 209
active union advocates, testified credibly and without contradiction that he
solicited at least 8 employees at the warehouse.
In appraising the reliability of the testimony of Superintendent Wright and
Foreman Anderson that they had no knowledge of union activity in the ware-
house until June 20, 1950, it must be remembered that there was only a limited
number of employees in the warehouse ; that Wright and Anderson were in daily
contact with them, and became aware of the 1949 union activity almost from
the start thereof, although such activity was considerably less extensive than that
in 1950. Viewing-it thusly, I find it difficult to believe the Respondent had no
knowledge of union activity among its employees prior to June 20, 1950. This
incredulity is increased when I recall that salesman Machado, whose contact
with the warehouse was limited at the most to a short visit each day before he
went out on his route, testified that he "knew what was going on at the ware-
house," and wanted to know "how [Raggio] stood" with reference thereto ; that
there was talk going on around the warehouse about the Union "in June" which
he "picked up" because he "knew a lot of the guys ," and from "listening" he
knew that most of them were "not union boys" ; and that employees Walton and
Hollar, "friends of Carl Raggio," were "connected with the organizing." u
Furthermore, it is undenied that Foreman Anderson on the morning of June 19
knew that the employees contemplated holding a meeting that evening.
From the entire record I am satisfied and find that the Respondent was aware
of the 1950 union activity in the warehouse prior to June 19, and knew or sus-
pected that the eight employees above referred to had made application to join
the Union or were interested in that organization.'2
I now come to the Respondent's second contention that the employees were
discharged on June 19 because of a necessary reduction in force, and not because
of union or collective activity as alleged in the complaint.
As above found, the Respondent sells its merchandise largely to schools, so
it would appear that during the summer vacation period when most of the schools
are closed it would be confronted with an annual slack season of several months.
The record supports such an inference only in part so far as the warehouse is
concerned. While orders on the warehouse may annually show some falling off
in late May and June-certainly no increase during that period-demands for
merchandise for the fall season cause the warehouse business annually to in-
crease beginning in mid-July and continuing thereafter. Moreover, starting in
late June of each year it is the Respondent's custom to employ school students
at the warehouse through the rest of the summer. The summer of 1950 was
no exception. There is no evidence that the discharged employees lacked suffi-
cient work to keep them occupied.
" The record shows that Machado later qualified the above statements by testifying that
he knew nothing about union organizing at the warehouse until he saw the union buttons on
June 20. This last testimony of Machado is obviously inconsistent with his previous state-
ment as well as other testimony he gave. Moreover, as found above, about June 14,
Machado discussed the Union with Raggio.
'2 As heretofore noted, the Respondent was granted permission to take depositions of
witnesses after the close of the hearing "for the purpose of showing The employee status of
the said Machado ." In spite of this limitation Omar E . Boyd, president of the Respondent,
testified in his deposition , over objection , that he had no knowledge of the union campaign
in the warehouse until June 20. Technically this testimony should be disregarded as beyond
the permissible scope of the deposition . Nevertheless , I am receiving and considering the
testimony, especially as there is some indication in the record that Mr. Boyd was not
available at the time of the hearing due to poor health. However , Boyd's testimony does
not change my finding above set forth that on the record considered in its entirety the
Respondent at least suspected prior to June 19 that the released employees involved herein
were interested in having a union to represent them in collective bargaining.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superintendent Wright testified that on June 17 Respondent 's auditor , Miles,
instructed him to discharge 10 of the warehouse employees because the payroll
was "too high " for that time of the year , and that as a result of this instruction,
and to some extent against his own judgment , he discharged the 7 employees
named in the complaint on June 19. Wright made no effort to reduce the force in
the warehouse beyond these 7 employees except that he refused to permit Raggio
to return to work. The record discloses that duiing the period from June 15
through June 20 , 6 new employees were put to work in the warehouse , another
new employee came on July 7, and 1 on July 10. Furthermore , during the 6-week
interval from July 15 , when as heretofore found the Respondent 's business
began to increase , to September 1, a period when the Respondent was telling the
discharged employees that there was no work available, it hired 23 new employ-
ees at the warehouse . In other words , while the payroll was reduced by the dis-
charge of the 8 employees involved in the complaint it was increased by 6 new
employees. Even this net reduction of 2 on the payroll was wiped out within 3
weeks, and more new employees were added thereafter'
In view of this record I find that the seven employees were not discharged on
June 19 because of any need to cut the Respondent 's warehouse payroll. I
further find that their release from employment did not in fact materially reduce
the payroll.
Considerable testimony was received as to the efficiency and the amount of
work performed by the seven discharged employees . As Superintendent . Wright
testified and the evidence shows that none of these employees would have been
discharged for incompetency , but all of them would have been retained as em-
ployees at the warehouse,if it had not been for the alleged order from Auditor
Miles to cut the payroll , I can see no point in an extended discussion in this
Report as to the qualifications of the discharged employees or any of them.
Suffice it to say that as to the four order clerks involved, the computation, sub-
mitted in evidence by the Respondent to establish the number of orders handled
by each order clerk in the warehouse , does not justify or warrant a finding as to
the ability or speed of any of the order clerks as it shows only the number of
orders filled by each clerk during a given period, but does not show the size or
quantity of any order , the items therein , or how much time was required or used
to fill an order. Furthermore, the distribution of the orders to be filled was
left entirely to the discretion of the supervisors. As to the competency of the
three remaining dischargees , the record is similarly inconclusive.
As to the third contention of the Respondent , that Raggio was released from
'employment because of his illness. The record does show that on May 27 Raggio
was attacked with a sudden, serious seizure of some kind that, among other
things, affected his eyes, and even his doctors apparently did not know for a week
or more thereafter the source of the trouble or how extensive the illness would
be. However , Raggio had been released from the hospital and was home on the
road to recovery presumably on June 8 when his friend , Donald Walton , paid him
a visit and he signed a union card. Machado, the family friend, who the previ-
ous March sponsored him for his job with the Respondent , discussed union ac-
tivity in the warehouse with Raggio about the 14th of June. Raggio talked to
Wright on the telephone on June 21 about returning to work in a few days.
Later that same night he was told by Machado not to report at that time. When
he applied in August following he was refused employment.
Wright testified that within a day or two after May 27, Foreman Anderson
reported that Raggio's illness was such- that his sight was affected and that he
13 It is also noted , as the record discloses, that one employee left the warehouse on June
23 and three left in July 1950.
STATIONERS CORPORATION 211
might never be able to do heavy lifting ; that he made up his mind at that time,
without verifying the report , that Raggio was "gone" as an employee and his
name was eliminated when the biweekly payroll list was made up on June 2
following . Other testimony of Wright , as well as the Respopdent 's records, are
inconsistent with the above uncorroborated testimony . For instance , Wright
also testified that he made personal telephone calls about Raggio's illness at the
latter's home , or caused them to be made ; that he received reports about his
progress from Raggio 's sponsor , wholesale salesman Machado ; and if Raggio
had reported for work by June 15 he would have been retained . Significantly
the Respondent 's records show that Raggio was carried on the books as an order
clerk through June 19 when the other discharges occurred . I therefore reject
the above testimony of Wright and find that Raggio was carried on the Re-
spondent 's books as an employee until June 19, when his name was stricken ;
that when he offered on June 21 to return to work he was told by management
that he was no longer an employee.
The reasons advanced by the Respondent for the release of the employees
described in the complaint having no merit, I find that Prulitsky , Philipp,
McCormick , Corley, Wagner , Allen, and Young were discharged on June 19,
1950, and Raggio was discharged on June 21 ," and all have since been denied
reinstatement , because the Respondent knew or suspected that' they have made
application to join the Union or were engaged in collective activity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above , occurring
in connection with the operations of the Respondent set forth 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 ob-
structing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the hire
and tenure of employment of McCormick , Philipp, Prulitsky , Corley, Wagner,
Allen, Young, and Raggio , it will be recommended that the Respondent offer
to each of them immediate and full reinstatement to his former or substantially
equivalent position '6 and make him whole for any loss of pay he may have
suffered by reason of the Respondent 's discrimination against him by payment
to him of a sum of money equal to that which he normally would have earned
as wages from the date of his discharge to the qa'te of the Respondent's offer
14 Aside from the timing of Raggio 's discharge , the finding,above that the Respondent
knew or suspected that he was interested in the Union is based on his talks with his friend,
salesman Machado. Although not a supervisor , Machado was close to management. He
had been with the Respondent for many years and was directly under its president ; he
reflected management ' s antiunion attitude : he knew of the union activity in the ware-
house. He had originally gotten Raggio his job ; and when on June 21 Machado told his
protege that the Respondent felt lie was too close to the union adherents and would there-
fore not hire him at that time, Raggio was justified in assuming that the salesman repre-
sented management . When he applied 6 weeks later Superintendent Wright confirmed
what the salesman had already told him. that there was no "opening " I find that on
June 21 Machado knew the Respondent' s decision as to Raggio, and the reason therefor ,
and correctly transmitted same to the latter
16 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65-
NLRB 827.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of reinstatement , less his net earnings during said period." Loss of pay is to 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 an
adequate offer of reinstatement . These quarterly periods are to begin with the
first day of January, April, July, and October. Loss of pay shall be determined
by deducting net earnings, if any, from a sum equal to that which each employee
would normally have earned for each such quarter or portion thereof . Earnings
in one particular quarter shall have no effect upon the back-pay liability for any
other quarter .11 It will also be recommended that the Respondent , upon request,
make available to the Board and its agents all payroll and other records perti-
nent to an analysis of the amounts due as back pay. Because of the discrimi-
natory charges found herein it will also be recommended that the Respondent
be ordered to cease and desist from in any manner infringing upon the rights
of employees as guaranteed by Section 7 of the Act.18
Upon the basis of the foregoing findings of fact and upon the entire record
I make the following :
CONCLUSIONS OF LAW
1. Warehouse , Processing & Distribution Workers Union Local 26, Interna-
tional Longshoremen 's and Warehousemen 's Union, is a labor organization within
the meaning of Section 2 (5) of the Act , admitting to membership employees
of the Respondent.
2. By discriminating in regard to the hire and tenure of employment of John
McCormick, Robert Philipp, Joseph Prulitsky, John Corley, Jessie Wagner,
Emmett Allen, Eugene Young, and Carl W. Raggio, Jr., the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) and (1) of the Act.
3. 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.]
16 Crossett Lumber Company , 8 NLRB 440.
17 F. W. Woolworth Company, 90 NLRB 289.
18 May Department Stores, 326 U. S. 376.
HALL-NEAL FURNACE COMPANY and SHEET METAL WORKERS INTER-
NATIONAL ASSOCIATION, AFL, PETITIONER. Case No . 35-RC402.
September 17, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Alan A. Bruckner, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in conection with this case to a three-member
panel [Chairman Herzog and Members Houston'and Reynolds].
96 NLRB No. 28.